_ 

<  •«* 
REPORTS 


OF 


PRACTICE   CASES, 


DETERMINED 


COURTS  OF  THE  STATE  OF  NEW  YORK: 


DIGEST   OF   ALL   POINTS    OF   PRACTICE    EMBRACED   IN   THE    STANDARD   NEW 

YORK    REPORTS.    ISSUED    DURING    THE    PERIOD    COVERED    BY    THIS 

VOLUME,    WITH"    REFERENCES    TO   THE    AMENDATORY 

ACTS    OF    1855. 


BY  ABBOTT  BROTHERS, 

COUNSELLORS     AT     LAW. 


VOL.  I. 


NEW-YORK : 

JOHN  S.  VOORHIES,  LAW  BOOKSELLER  AND  PUBLISHER, 

20   NASSAU-STREET. 

1855. 


[Entered,  according  to  Act  of  Congress,  in  the  year  One  Thousand  Eight  Hundred  and  Fifty- 
five,  by  ABBOTT  BROTHERS,  in  the  Cleilt'a  Office  of  the  District  Court  for  the  Southern  Di»- 

.rftuoo  ens&m  OH  ^d  ivt,i<  r,w  bttvr^i 


trictof  iNew  York.] 


PREFACE. 


THE  present  volume  is  the  first  of  a  new  series  of  reports  of  practice  cases  in  the 
courts  of  the  State  of  New  York.  Since  the  commencement  of  the  changes  in 
the  system  of  procedure  in  courts  of  justice,  which  have  for  some  time  been  taking 
place  in  this  State,  the  necessity  of  prompt  and  accessible  information  upon  the 
decisions  of  points  of  practice,  has  been  much  felt  by  the  profession.  It  is  the  aim 
of  this  series  to  assist  in  supplying  that  want.  But  while  decisions  under  the  Code 
of  Procedure  form  the  most  numerous  and  important  class  of  the  cases  here 
reported,  we  have  by  no  means  confined  the  series  to  such.  Cases  illustrative  of 
criminal  practice,  of  practice  in  special  proceedings,  of  the  rules  of  evidence,  &c., 
are  to  a  considerable  extent  embraced  in  the  plan. 

But  while  we  have  intended  that  these  reports  shall  cover  a  tolerably  broad  field 
in  this  respect,  we  have  endeavored  to  confine  the  selection  of  cases,  principally  to 
such  as  are  likely  to  possess  a  permanent  value  and  authority.  We  have  not 
intended  that  these  reports  shall  be  a  mere  magazine  of  the  current  judicial  news  of 
the  day,  but  a  selection  of  standard  cases,  such  as  promise  to  be  useful  guides  to 
the  practitioner  for  many  years  to  come.  This  object  will  be  steadily  kept  in  view 
in  future  volumes,  and  as  we  hope,  with  increased  success. 

The  PRACTICE  DIGEST,  which  follows  the  reports  of  cases,  differs  materially  from 
the- usual  digest  appended  to  the  volumes  of  reports  published  at  the  present  day. 
We  have  made  it  a  digest  of  all  practice  cases  contained  in  the  standard  Reports  of 
this  State,  which  have  been  issued  during  the  period  covered  by  the  publication  of 
this  volume.  This  digest  is  an  original  one,  studiously  prepared  from  an  exami- 
nation of  all  the  cases  reported.  It  is  not  a  compilation  of  the  marginal  notes  of 
other  reporters,  but  every  note  has  been  freshly  digested,  and  the  notes  fully  colla- 
ted. It  embraces  also  the  substance  of  so  much  of  the  Acts  of  1855  as  relates  to  ques- 
tions of  practice.  And,  while  studying  a  suitable  conciseness,  we  have  also  endea- 
vored to  give  the  substance  of  all  decisions  or  statutes  likely  to  be  of  frequent  appli- 
cation, so  fully  and  accurately  that  the  practitioner  who  has  not  the  volumes  refer- 
red to  at  hand,  may  safely  act  upon  these  notes.  Should  this  feature  of  the 
volume  be  approved,  it  will  be  continued  in  the  future  volumes  of  the  series. 

Those  who  have  found  these  reports  as  they  have  been  issued  in  numbers,  ser- 
viceable, may  rest  assured  that  the  series  will  be  continued,  with  such  improve- 
ments as  time  may  suggest. 


IV  PREFACE. 

For  the  convenience  of  subscribers  in  other  States  of  the  Union,  we  will  add  a 
few  words  of  explanation  in  respect  to  the  comparative  authority  of  the  different 
reports  cited  in  the  digest. 

4  SELDEN'S  COURT  OF  APPEALS  REPORTS.     [4  Seld.]     1  KERNAN'S  COURT  OF  AP- 
PEALS REPORTS.     [1  Kern.] 

The  Court  of  Appeals  is  the  highest  court  in  the  State,  for  the  determination  of 
questions  of  law,  arising  in  civil  or  criminal  actions.  It  has  appellate  jurisdiction 
only,  and  its  decisions  are  conclusive  upon  all  other  courts  of  the  State,  until 
recalled  by  the  Court  of  Appeals  itself.  The  decisions  in  this  court  are  reported  by 
an  official  reporter.  The  4  Selden  terminates  the  series  conducted  by  Mr.  Selden  ; 
and  the  1  Kernan  is  the  initial  volume  of  that  to  be  issued  by  his  successor  in  office. 
Wherever  it  occurs  that  a  decision  quoted  in  our  digest  from  Selden  or  Kernan  con- 
flicts with  one  reported  from  another  court,  it  is  to  be  understood  that  Selden  or 
Kernan  as  the  case  may  be,  states  what  is  the  law  of  the  State ;  and  that  the  con- 
tradictory deci&ion  is  overruled.  The  conflict  in  such  cases  usually  arises  of  course 
from  the  fact  that  the  overruled  decision  was  rendered  before  the  decision  of  the 
Court  of  Appeals  was  published. 

1  HOWARD'S  COURT  OF  APPEALS  CASES.     [1  How.  App.,  Cas.] 

This  volume  contains  the  opinions  of  the  Court  of  Appeals  in  some  cases  which 
have  not  heretofore  been  reported  by  the  official  reporters  of  the  Court.  The  deci- 
sions quoted  from  this  volume,  although  few  in  number,  are  of  course  of  equal 
authority  with  those  cited  from  Selden  and  Kernan. 

17  &  18  BARBOUR'S  SUPREME  COURT  REPORTS.  [17  &  18  Barb.] 
These  are  the  regular  reports  of  the  New  York  Supreme  Court.  This  is  the  most 
important  court  of  original  jurisdiction,  in  the  State;  and  its  jurisdiction  extends 
throughout  the  whole  State,  and  is  of  the  most  comprehensive  character.  It  is  or- 
ganized, however,  into  eight  distinct  districts,  located  in  different  portions  of  the 
State.  The  judges  of  each  district  hold  the  Supreme  Court  in  that  district  only  ; 
and  are  independent  of  those  of  any  other.  There  is  a  very  general  disposition  in 
the  different  districts  to  follow  each  other's  decisions,  for  the  sake  of  preserving  a 
convenient  uniformity,  yet  it  not  unfrequently  happens,  especially  in  respect  to 
questions  of  practice,  such  as  are  within  the  control  and  discretion  of  the  court, 
that  different  districts  adopt  different  courses,  and  their  decisions  conflict.  Where 
this  is  the  case,  neither  district  has  power  to  overrule  the  decisions  of  the  other,  but 
the  practice  remains  variant  in  different  portions  of  the  State,  until  in  course  of 
time  a  uniform  rule  is  perhaps  prescribed  in  the  Court  of  Appeals. 

2  DUER'S  NEW  YORK  SUPERIOR  COURT  REPORTS.  [2  Duer].  1  E.  D.  SMITH'S 
COMMON  PLEAS  REPORTS.  [1  E.  D.  Smith's  C.  P.  R.] 

The  New  York  Superior  Court  and  Court  of  Common  Pleas  are  two  local  courts 
established  in  the  city  of  New  York.  The  Common  Pleas  is  considered  the  oldest 
court  in  the  State.  The  Superior  Court  has  been  organized  but  about  a  quarter  of 
a  century. 

These  two  courts  possess  a  less  comprehensive  jurisdiction  than  the  Supreme 
Court,  but  within  their  jurisdictions  the  three  courts  may  be  considered  as  possess- 
ing co-ordinate  authority.  Neither  of  them  possesses  appellate  power  over  the 
other,  but  appeal  from  the  decisions  of  each  lies  directly  to  the  Court  of  Appeals. 
The  same  reasons  which  give  rise  to  different  rulings  on  questions  of  practice  in 


PREFACE.  V 

the  different  districts  of  the  Supreme  Court  occasion  conflicting  decisions  in  these 
three  courts.  When  therefore  contradictory  decisions  are  cited  in  the  digest,  from 
Barbour,  Duer,  and  Smith,  it  is  to  be  understood  that  neither  of  them  are  para- 
mount to  the  other,  but  that  the  decisions  of  each  court  are  of  authority  in  that  tri- 
bunal. 

1  ABBOTT'S  PRACTICE  REPORTS.     [Ante.  ] 

As  this  volume  consists  of  cases  reported  from  all  the  various  courts,  the  weight 
which  is  to  be  attached  to  any  one  case  is  to  be  determined  by  considering  from 
what  court  it  emanated.  As  the  reader  of  the  digest  has  of  course  the  volume  be- 
fore him,  the  references  to  it  have  been  made  as  concise  as  possible. 

10  HOWARD'S  PRACTICE  REPORTS.     [10  How.  Pr.  R.~\ 

This  volume,  also,  consists  of  cases — principally  but  not  exclusively  practice  cases, 
— determined  in  the  various  courts  of  the  State. 

1  PARKER'S  CRIMINAL  REPORTS.     [1  Parker's  Cr.  R.] 

This  volume  contains  reports  of  criminal  cases,  tried  or  argued  in  various  courts 
of  the  State.  Some  of  them  are  cases  in  the  nature  of  appeals,  which  were  elabo- 
rately argued,  and  well  considered,  before  decision.  The  substance  of  these  deci- 
sions, so  far  as  they  relate  to  questions  of  practice,  is  given  at  considerable  length, 
in  the  digest.  Many  of  the  cases  in  the  volume,  however,  are  only  reports  of  rulings 
upon  trials  ;  and  our  notes  of  these  are  very  concise,  being  intended  merely  to  direct 
attention  to  the  case  referred  to. 

LAWS  OF  1855. 

It  was  not  to  have  been  expected  that  so  important  a  measure  of  legal  reform  as 
the  Code  of  Procedure  should  be  perfected  at  once.  There  has  been  hitherto,  and 
probably  will  be  for  some  years  to  come,  frequent  occasion  for  legislative  modifica- 
tion of  its  details.  Such  changes  as  were  introduced  by  our  legislature  at  their 
session  of  this  year  have  been  fully  noted.  It  will  be  noticed  that  some  of  the  de- 
cisions are  superseded  by  enactments. 

GENERAL  AND  SPECIAL  TERMS. 

It  may  be  well  to  add,  that  a  decision  described  as  the  decision  of  the  special  term 
of  any  court,  means  the  decision  of  a  single  judge  holding  that  court.  The  general 
term  is  holden  by  several  judges — usually  three — and  sits  generally  for  the  purpose 
of  hearing  appeals  from  decisions  made  at  the  special  term.  It  is  from  the  decision 
of  the  court  at  general  term  that  appeal  is  taken  to  the  Court  of  Appeals.  The 
decisions  at  general  term  are  of  course  entitled  to  the  most  weight. 

ABBOTT  BROTHERS. 
119  Nassau-street,  New  York. 


TABLE 


CASES   REPORTED    IN   VOLUME   I 


A. 

PAGE                                                                                          PAGE. 

Aldrich,  Markoe  a.     - 

55 

Chemical  Bank,  The,  a.  The  Mayor 

Allaire  a.  Lee,             ... 

125 

of  New  York,     - 

19 

Allen  a.  Smillie,         - 

354 

Childs,  Lowber  a. 

415 

Anderson  a.  DePeyster, 

234 

Christophers  a.  Selden, 

272 

lVfm"in  n 

288 

272 

Appleby  a.  Strang,    - 

143 

Clark,  in  the  application  of, 

91 

Arrangois,  The  Republic  of  Mexico  a. 

437 

Cockle  a.  Underwood, 

1 

Cockroft,  Drake  a.     - 

203 

Commissioners  of  Emigration,  The, 

B 

Phoenix  a. 

466 

Conkey,  Slauson  a.    - 

228 

Babcock,  The  Union  Rubber  Co.  a. 

262 

Coons  a.  Chambers, 

165 

Badcock,  Vogel  a. 

176 

Corlies.  Fairbanks  a. 

150 

Bard,  Marks  a.            - 

63 

Cudlipp  a.  Whipple, 

106 

Barnum,  Munn  a. 

281 

Curtis  a.  Leavitt,        -         -          118, 

274 

Baxter,  Voorhies  a.    - 

43 

Beam,  Lane  a.            ... 

65 

Bennett,  Fry  a.          - 

289 

D. 

Binney  a.  Le  Gal,      - 

283 

Bissell,  Brady  a. 

76 

Darrin,  Jacks  a.                            149, 

232 

Blatchford,  Leavitt  a. 

274 

Davis  a.  Kinney,        - 

440 

Board  of  Supervisors  of  the  City  of 

DeAgreda  a.  Mantel, 

130 

New  York,  The  New  York  Life 

De  Peyster.  Anderson  a.    - 

234 

Insurance  Company  a. 

250 

\f  '  iip—  _ 

234 

Boyle,  Broderick  a.    - 

319 

Derby,  Jones  a. 

458 

Brady  a.  Bissell,         - 

76 

Dobson  a.  Pearce, 

97 

Braisted,  Tuffts  a.      -         -        - 

83 

Donnelly,  The  People  a.     - 

459 

Broderick  a.  Boyle,    - 

319 

Drake  a.  Cockroft,     - 

203 

Brown,  in  the  matter  of,    - 

108 

Duel  a.  Spence,          - 

237 

Duguid  a.  Ogilvie,     - 

145 

Dwindle  a.  Howland, 

87 

C. 

Canal  Bank,  The  a.  Harris, 

192 

E. 

Carey,  Gorum  a. 

285 

Carnley,  Hull  a.         -         -         - 

158 

Elmer,  Seymour  a.     - 

412 

Chambers,  Pringle  a. 

58 

Ely  a   Miller. 

241 

,  Coons  a. 

165    Everson  a.  Gehrman, 

167 

Till 


TABLE   OF  CASES. 


F. 

Fairbanks  a.  Corlies, 
Foster  a.  Poillon, 
Frost.  Westervelt  a. 
Fry  a.  Bennett, 


G. 

Gehrman,  Everson  a. 
Ginochio  a.  Orser,    - 
Goedel  a.  Robinson, 
Gorum  a.  Carey, 
Greenwood,  Jacques  a. 
Gregory  a.  Trainer, 
Griffith,  St.  John  a. 
Guynet,  Mantel  a. 


H. 

Harpell  a.  Irwin, 

Harris,  The  Canal  Bank  a. 

Heath,  Slack  a. 

Hilton  a.  Thurston, 

Rowland,  Dwinelle  a. 

Hudson  River  R.  R.  Company,  The 

People  a.  - 
Hull  a  Carnley, 
Hyde  a.  Patterson,  - 


Irwin,  Harpell  a. 


J. 


Jacks  a.  Darrin, 
Jacques  a.  Greenwood, 
James  a.  Oakley, 
Jones  a.  Derby, 

a.  Palmer, 

Judd,  Wesson  a. 


K. 


Keteltas  a.  Myers,     - 

Kiersted  a.  The  People  of  the  State 

of  New  York,     - 
King,  Thurston  a. 
Kinney,  Davis  a. 


L. 

La  Chaise  a.  Lord,     - 
Landau  a.  Levy, 
Lane  a.  Beam, 
Leavitt  a.  Blatchford, 


- 

- 

The 

149, 
State 

PAGE 

150 
321 
74 
289 

167 
433 
116 
285 
230 
209 
39 
130 

144 
192 
321 
318 
87 

33 

158 
248 

144 

232 
230 
324 
458 
442 
254 

403 

385 
126 
440 

213 
376 
65 

274 

PAGE 

Leavitt,  Curtis  a.         -        -         118.274 
Lee,  Allaire  a.                                          125 
Lefferts  a.  Snediker,                               41 
Le  Gal,  Binney  a.     -        -        -        283 
Leroy  a.  Lowber,       ...           67 
Levy,  Landau  a.                                     376 
Linn  a.  O'Hara,         ...         360 
Lord,  LaChaise  a.                -         -         213 

Th*>  M*»trnrmlitaTi  Rant  n     -             Ift^ 

Lowber  a.  Childs,       ...         415 
Lowber,  Leroy  a.                                     67 

M. 

Mahaney  a  Penman,          -                   34 
Mantel,  De  Agreda  a.         -        -         130 

a(  Iiiv  net                                                        1  QO 

Marks  a.  Bard,                                           63 
Markoe  a.  Aldrich,    -                             55 
Marryatt,  Southwell  a.                           218 
Mason,  The  Mayor  &c.  of  the  City  of 
New  York  a.               -'      -        344 
a   Whitcly                                    85 

Mayor  &c.  of  the  City  of  N.Y.,  The, 
a.  Mason,  -                                    344 

nf  Nrw  Vnrlr  Thr    Thr  Phf-m 

—  01  L>  ew  i  orK,  i  ne,  i  ne  v^nem- 
ical  Bank  a.                                       79 

nf  TVrtT.»  ~\7«~U    T'U^    "\X7:i~  ~              it 

—  01  iiew  i  orK,  me,  vv  nson  &.       4 
McMasters  a.  Vernon,         -         -         179 
McOliff,  Quin  a.                                    322 
Mechanics'  and  Traders'  Savings  In- 
stitution a.  Roberts,    -         -         381 
Meeks  a.  Noxon,      ...         280 
Merritt  a.  Thompson,          -        -         223 
Metropolitan  Bank,  The,  a.  Lord         185 
Meyers  a.  Trimble,     -        -          220,  399 
Meyer,  Winthrop  a.  -         -        -         383 
Miller,  Ely  a.     -        -         -        -         241 

o>.  Ue  r  eyster,            •        •         234 
Monnot,  Taylor  a.                                 325 
Morari  a.  Anderson,  -                           288 
Munn  a.  Barnum,      ...         281 
Myers,  Keteltas  a.                                 403 

N. 

New  York  Central  Mills,  The,  Sher- 
man a.                                            187 
New  York  Life  Insurance  Company 
a.  The  Board  of  Supervisors  of 
the  City  of  New  York,         -         250 
New  York  and  New  Haven  R.  R. 
Co.  a.  Schuyler,           -         -        417 
Ninety-nine  plaintiffs,  The,  a.  Van- 
derbilt,       -        »         -        -         193 
Noxon,  Meeks  a.        -        -         -         280 

O. 

Oakley.  James  a.        ...        324 
Ogilvie,  Duguid  a.    -        -        -         145 

TABLE   OF  CASES. 


IX 


O'Hara,  Linn  a. 
Orser,  Ginochio  a. 


P. 

Palmer,  Jones  a. 

Parker  Vein  Coal  Co.  The,  The  Peo- 
ple ex  ret  Jenkins  a.     - 

Patterson,  Hyde  a.     - 

Partridge.  Sherman  a. 

Pearce,  Dobson  a. 

Pendleton.  Weed  a. 

Penman,  Mahaney  a. 

People,  The,  a.  Donnelly, 

Kiersted  a.     - 

Restenblatt,  a. 

ex  rel.  Jenkins  a.  The  Parker 

Vein  Coal  Company,  - 

Phoenix   a.   The   Commissioners  of 
Emigration,         - 

Pinckney  a.  Wallace, 

Poillon,  Foster  a. 

Pringle  a.  Chambers, 

Purple  a.  The  Hudson  River  Rail 
Road  Company, 


Q. 


Quin  a.  McOliff, 
Quintard  a.  Secor, 


R. 

Republic  of  Mexico,  The,  a.  Arran- 

gois, 

Restenblatt,  The  People  a. 
Roberts,  The  Mechanics'  and  Traders 

Savings  Institution  a. 
Robinson,  Goedel  a. 


Sf 

Scherpf  a.  Szadeczky, 

Schuyler,  The  New  York  and  New 

Haven  R.  R.  Co.  a.     - 
Seaboard  and  Roanoake  R.  R.  Co. 

a.  Ward,     .... 
Secor,  Quintard  a. 
Selden  a.  Christophers, 

— ,  Christophers  a.      - 
Seymour  a.  Elmer,     - 
Sherman  a.  The  New  York  Central 

Mills,          .... 


PAGE 

PAGE 

360 

„       'D««4>«J«A. 

256 

433 

Slack  a.  Heath.          - 

331 

Slauson  a.  Conkey,    - 

228 

Smillie,  Allen  a.        -         - 

354 

Smith  a.  Wright,       ... 

243 

Snediker,  Lefferts  a.           -        - 

41 

442 

Southwell  a.  Marryatt, 

218 

Spence,  Duel  a. 

237 

128 

Stewart's  case.           ... 

210 

248 

St.  John  a.  Griffith,    - 

39 

256 

Strang,  Appleby  a.     - 

143 

97 

Szadeczky,  Scherpf  a. 

366 

51 

34 

459 

T. 

385 

268 

Talmadge,  Tracy  a.     -        -        - 

460 

Taylor  a.  Monnot,      - 

325 

128 

Thompson,  Merritt  a. 

223 

Thurston  a.  King,      ... 

126 

466 

Hiltfm  ft 

Q1Q 

82 

Tracy  a.  Talmadge,    - 

O1O 

460 

321 

Trainer,  Gregory  a.   - 

209 

58 

Trimble,  Meyers  a.     -        -        220, 

399 

Tuffts  a.  Braisted,      - 

83 

33 

• 

U. 

Underwood,  Cockle  a. 

1 

322 

Union  Rubber  Co.,  The,  a.  Babcock, 

262 

393 

V. 

Vanderbilt,   The  ninety-nine  plain- 

tiffs a. 

193 

437 

Vernon,  McMasters  a. 

179 

268 

Vogel  a.  Badcock,      - 

176 

>' 

Voorhies  a.  Baxter,    -         -         - 

43 

381 

116 

W. 

Wallace,  Pinckney  a. 

82 

Ward,  Seaboard  and  Roanoake  Rail 

366 

Road  Company  a. 

46 

Weed  a.  Pendleton, 

51 

417 

Wesson  a.  Judd,         - 

254 

Westervelt  a.  Frost, 

74 

46 

Whipple,  Cudlipp  a.           -        - 

106 

393 

Whitely.  Mason  a.     - 

85 

272 

Whitlock's  case,         - 

320 

272 

Wilson  a.  The  Mayor  &c.  of  N.  Y. 

4 

412 

Winthrop  a  Meyer,  - 

383 

Wright,  Smith  a.      ... 

243 

187 

. 


8-.ll 


INDEX 

TO    THE 

CASES    KEPORTED    IN  VOLUME   I, 


A. 

PAGE 

Accommodation  Endorser ; — what  misapplication  of  note  will  discharge 237 

Act  of  Agent ; — How  to  be  pleaded 39 

Admission, — distinguished  from  contract 58 

Affirmance; — Form  of  judgment  of,  on  appeal  from  Special  to  General  Term.  130 

Affirmative  Relief; — cannot  be  granted  to  one  defendant  against  co-defendant  381 

Agreement ; — cannot  be  explained  by  correspondence  bearing  prior  date 165 

—  Reformation  of 67 

Allowance ; — may  be  granted  in  case  of  nonsuit 125 

Alterations  in  Agreement ; — Time  of  making,  a  question  for  the  jury 58 

Amendment ; — allowed  in  attestation  of  foreign  records  after  verdict 55 

not  allowable,  to  change  action  from  contract  to  tort 65 

of  course. — Addition  of  new  cause  of  action  allowed 85 

Answer ; — if  verified,  will  not  readily  be  stricken  out  as  sham  281 

which  sets  out  no  new  matter  cannot  be  stricken  out  as  sham 116 

putting  in  issue  allegations  of  title  to  note  sued  on,  not  frivolous 185 

if  not  palpably  bad,  not  frivolous    187 

which  denies  allegations  of  complaint  conjunctively,  is  frivolous 187 

—  merely  denying  defendant's  indebtedness,  will  be  stricken  out 203 

in  justice's  court,  alleging  set  off  admits  the  indebtedness  alleged. . . .  209 

Terms  on  which  leave  to,  was  granted,  subsequently  modified  by  ano- 
ther judge,  and  his  order  affirmed 272 

How  far  corporation  may  deny  knowledge  of  acts  of  agent 187 

When  denial  of  information,  &c.,  will  be  stricken  out  as  sham 251 

Sham  answers  distinguished  from  frivolous 41 


Appeal; — from  decision  at  general  term  affirming  decision  at  special  term. .. .  403 

—  from  report  of  referees,  direct  to  general  term 460 

Discretion  exercised  at  special  term  not  reviewed  at  general  term 223 

Appearance ; — waives  irregularity  in  affidavits 248 


Xll  INDEX. 

PAGE 

Arrest ; — Verified  complaint  may  supply  defect  in  affidavit 76 

Assignee  of  Judgment ; — may  sue  upon  it  without  leave  of  court 83 

Assignment ; — Cause  of  action  founded  on  injury  to  the  person,  not  assignable       33 

Surviving  partner  may  assign  chases  in  action  belonging  to  the  firm.  —       82 

Attachment ; — granted  in  the  Common  Pleas,  to  enforce  an  order  that  defendant 

satisfy  a  part  of  plaintiff's  claim  admitted  to  be  just 220-399 

denied  in  the  Superior  Court,  except  for  trust  moneys 443 

Attorney; — may  be  compelled  to  disclose  names  and  residences  of  his  clients.      193 
When  he  may  be  compelled  to  exhibit  authority 193—437 

B. 

Bill  of  Exchange ; — recovered  on,  though  lost  after  suit  brought 148 

Bills  of  Peace ; — in  what  cases  will  lie 417 

Burden  of  Proof ; — in  an  action  for  penalty  for  selling  liquor  without  license..     344 

C. 

Chattels; — may  be  sold  on  execution  against  mortgagor,  while  i»  possession..      158 

Checks ; — within  statute  authorizing  recovery  on  lost  bills  of  exchange 148 

Complaint ; — Form  of,  for  money  lent 106 

on  promissory  note 185—403 

for  recovery  of  specific  personal  property 176 

on  an  undertaking  given  for  the  return  of  specific  personal  property. .     381 

for  breach  of  contract,  must  allege  tender  of  performance 243 

How  drawn  on  several  distinct  causes  of  action 376 

Old  forms  of  declaring  in  indeb'tatus  assumpsit,  when  sufficient 106 

Multifariousness  of  complaint 417 

One  cause  of  action  set  up  in  two  different  counts,  allowable 442 

Statutory  requirement  a  sufficient  consideration 381 

Contempt ; — Of  punishment  as  for  contempt 399-443 

Conviction  of  Vagrancy  ; — Record  of,  how  filed  to  support  commitment 210 

Corporation; — cannot  deny  knowledge  sufficient,  &c.,  as  to  acts  of  agent. . . .      187 

Costs ; — in  suits,  commenced  before  the  Code,  how  taxed 118-179 

in  case  of  interpleader 234 

of  appeal  to  the  Court  of  Appeals,  how  taxed,  &c 262 

Appellant  from  justice's  judgment,  entitled  to  costs  of  court  below. . .     232 

Taxation  not.  stayed  by  appeal 118 

Counter-claim  ; — When  it  prevents  a  discontinuance 1—46 

Court ; — Powers  of  general  term  and  special  term  compared 460 

D. 

Damages ; — Vindictive,  may  be  given  for  malicious  libel 289 

Date  ; — of  instrument  undated,  a  question  of  fact 165 

Decree  ; — of  Court  of  Equity  of  another  State,  held  conclusive  here 97 

Default ; — When  excusable 412 

Manifest  injustice  shown  by  defendant's  affidavit 412 

Deposition  on  commission  ; — How  returned 87 


INDEX.  Xlll 

PAGE 

Deposition  de  bene  esse ; — Evidence  of  witness'  inability  to  attend 289 

When  admissible 4 55 

Discontinuance; — Pendency  of  suit  in  another  State,  no  reason  for  ordering. .  437 

E. 

Escape ; — Defences  in  action  against  sheriff 433 

Evidence ;— A  defendant  in  an  indictment  is  not  a  witness  for  or  against  his 

co-defendant  until  discharged  from  the  record 459 

Assignor  of  chose  in  action  not  rendered  incompetent  by  covenant 

that  the  amount  claimed  is  really  due 383 

—  Defect  of  proof; — objection  when  obviated 344 

Guest  competent  against  innkeeper  to  prove  value  of  baggage 325 

in  an  action  for  libel 289 

Motion  to  supply  defect  in  proof  after  new  trial  granted — denied 289 

Pnma  facie  proof  of  marriage  when  sufficient 366 

Foreign  records  how  proved 55 


Examination  of  Parties ; — Counter-claim  proved  by  defendant  on  his  own  be- 
half, admits  plaintiff. 144 

Co-defendant  cannot  prove  defence  of  usury 241 

Execution; — cannot  issue  after  death  of  judgment  creditor 126 

Sale  of  chattels  on,  against  mortgagor,  passes  only  his  interest 158 

F. 

Factors; — may  bring  action  for  conversion  of  goods  consigned  to  them 285 

Fee-bill ; — not  repealed  by  the  Code 118 

Foreign  Records  ; — How  proved f>5 

Fraud  ; — Any  number  of  parties  combining  in  a  fraud  may  be  joined  as  defend- 
ants in  an  action  relating  to  it 417 

—  in  entering  judgment,  good  defence  to  action  on  it 97 

H. 

Habeas  Corpus ; — Officer  cannot  go  behind  commitment  for  vagrancy 210 

Habitual  Drunkards; — Judicial  custody  of  their  persons  and  property 108 

I. 

Indemnity  Bond ; — given  to  sheriff,  although  after  sale,  valid 74 

Indictment ; — should  be  quashed  if  found  without  adequate  evidence 268 

Injunction  and  Receiver ; — When  granted  against  insolvent  firm 213 

Injunction; — will  not  lie  to  restrain  collection  of  taxes  illegally  imposed.  ..4-79-250 

—  What  is  sufficient  ground  for  injunction  against  nuisance 460 

—  lies  to  restrain  suit  upon  judgment  on  ground  of  fraud 97 

Innkeeper; — The  extent  of  his  liability  for  the  property  of  his  guest 325 

Interpleader ; — In  what  cases  allowable 417 

costs  in  action  of 234 

When  order  of,  under  §  122  of  the  Code,  may  be  made 256 

Irregularity ; — in  affidavits  waived  by  general  appearance 248 


INDEX. 

PACK 
J. 

Joinder  of  Actions; — Claims  against  defendant  personally,  and  as  trustee,  can- 
not be  joined 376 

Joinder ; — of  representatives  of  deceased  party  to  a  suit 130 

Joint  liability  on  Contract; — continues  in  joint  liability  on  judgment 34 

Joint  Debtors : — Judgments  against,  can  only  be  entered  after  all  defendants 

served  have  had  full  time  to  answer 230 

Joint  Stock  Corporation; — is  not  a  trustee  for  individual  corporators 417 

Judgment ; — of  courts  of  one  State,  how  far  conclusive  in  others 97 

—  on  appeal  from  Special  to  General  Term ,  130 

—  Test  of  the  right  to  docket 130 

against  two  partners  on  accepted  offer  by  one,  irregular 167-283 

Form  of,  upon  remittitur  from  the  Court  of  Appeals 262 

When  vacated  for  non-service  of  summons 218-318 

When  presumed  to  be  for  $25  exclusive  of  costs 320 

What  is  a  judgment  directing  payment  of  money 274 

Judgment  upon  Confession ; — Form  of  entering 354 

Judgment  Record; — will  not  be  vacated  for  irregularity,  inequitably 51 

Jurisdiction  ; — in  an  action  against  the  State 385 

of  District  Court  where  neither  party  resides  within  district 150 

—  of  Superior  Court; — Personal  objection  waived  by  appearance 34 

Jurors; — in  District  Courts,  how  summoned,  empanelled,  and  challenged. . . .  344 

Justice; — cannot  entertain  a  motion  to  strike  out  a  pleading 344 

may  proceed  with  cause  at  the  hour  mentioned  in  summons 143 

cannot  open  his  judgment  regularly  rendered 143 

— Suspension  of  trial  by 150 

His  finding  is  conclusive  where  evidence  is  conflicting 150 

L. 

Limitations,  Statute  of; — as  to  joint  debtors 440 

Lunacy ; — Commission  of,  will  not  be  issued  by  the  Superior  Court 108 

M. 

^Mandamus ; — will  not  be  granted  to  compel  transfers  of  stock 128 

Marine  Court ; — may  cause  a  necessary  party  to  be  brought  in 415 

'Mechanic's  Lien  ; — Service  on  the  owner  alone  gives  jurisdiction 415 

-Requisites  of  complaint 319-321-322 

Rights  of  sub-contractors  where  contractor  has  thrown  up  work  on 

•discovery  of  fraud  on  the  part  of  the  owner 360 

Misjoinder ; — Proper  form  of  judgment  in  case  of  misjoinder  of  defendants . . .  63 

No  cause  of  demurrer  by  defendant  properly  joined 82 

Complaint  joining  guilty   holders  of  over-issued  stock  with  innocent 

holders  without  notice,  in  an  action  to  have  certificates  delivered  up  to  be 

cancelled,  is  bad 417 

Motions ; — must  not  be  made  in  the  First  District  in  an  action  in  which  the 

•venue  is  laid  in  another  district. .  192 


INDEX.  XV 

PAGE 

N. 

Naturalization ; — Powers  and  duties  of  State  Courts 90 

O. 

Offer  to  allow  Judgment ; — Section  385  of  the  Code  limited 443 

P. 

Parties; — When  representatives  of  deceased  party  to  a  suit,  should  be  joined.  130 
How  far  the  executors  of  a  deceased  partner  are  liable  with  surviving 

partners 43 

Partner ; — not  authorized  to  confess  judgment  against  the  firm 167-283 

Partnership ; — held  to  exist  between  two  mercantile  firms 243 

Payment; — of  prior  indebtedness  presumed  from  making  and  paying  note. . .  145 

Payment  of  Money ; — What  is  a  judgment  directing 274 

Pleading; — Objection  to  amount  of  claim  must  be  by  answer,  not  demurrer..  288 

Defendant  cannot  demur  and  answer  to  the  same  matter 281 

Objection  that  complaint  does  not  contain  facts  sufficient  to  constitute 

cause  of  action,  should  not  be  set  up  in  answer 331 

Remedy  for  indefinite  and  uncertain  complaint  in  Justices'  Court ....  <544 

A  special  plea  still  admits  matters  stated  in  declaration 209 

Recitals  in  an  instrument  set  out  in  a  pleading,  equivalent  to  averments . .  331 

Variance  between  averment  and  proof  of  title 285 

Variance  between  plea  and  proof  of  usury 237 


—  Tenant  cannot  set   up  as  counter-claim,  trespass  by  the  landlord  on 


the  demised  premises,  in  an  action  for  rent. 203 

How  to  plead  act  of  agent 39 


Pleadings ; — t«  be  liberally  construed 39 

R. 

Receiver; — Special  receiver  entitled  to  instructions  from  the  Court 274 

Duties  and  obligations  of 460 

Recoupment ; — Query,  whether  the  doctrine  of,  has  been  extended  by  the  Code  203 

Referee ; — may  open  cause  after  submission 145 

S. 

Satisfaction  of  part  of  plaintiff's  claim ; — When  ordered.  .220-223-228-393-399-443 

Scire  Facias ; — abolished  by  the  Code 126 

Service  of  Summons  ; — on  election  day,  void 280 

When  judgment  will  be  set  aside  for  want  of 218 

• under  the  "  Act  to  facilitate  service  of  process  in  certain  cases". .....  458 

Sheriff; — not  liable  to  mortgagee  of  chattels  for  having  sold  them  absolutely 

on  execution  against  mortgagor 158 

of  another  State.  His  affidavit  to  service  of  process  necessary 126 

Specific  personal  property  ; — Right  to  immediate  delivery  may  be  waived 176 

State ; — Action  against  the,  cannot  be  maintained  in  a  State  court  except  as 

authorized  by  statute 385 

—  may  be  enjoined  from  the  erection  of  a  nuisance  upon  its  lands 4!>5 


INDEX. 

PAG* 
T. 

Taxation  of  costs  : — is  not  stayed  by  appeal 118 

Taxes ; — cannot  be  legally  assessed  on  personal  property  of  non-residents. ...  4 

illegally  imposed,  what  remedies  for  at  law 4 

Injunction  to  restrain  collection  of,  will  not  lie 4—79 

Testimony  ; — taken  conditionally.     When  admissible 55 

taken  on  commission.     How  to  be  returned 87 

Torts ; — Rule  in  respect  to  assignment  of,  not  altered  by  the  Code.. 33 

Trial; — has  been  had,  where  plaintiff  submits  to  nonsuit  after  evidence  heard 

on  both  sides 125 


U. 

Undertaking; — held  good  notwithstanding  misrecital 248 

for  the  return  of  specific  personal  property,  not  avoided  by  being 

given  to  plaintiff  instead  of  sheriff. 331 

Usury ; — Right  to  set  up  usury  in  a  mortgage  of  chattels,  extinguished  by  sale 

of  them  subject  to  the  mortgage 324 

• 

V. 

Verdict ; — When,  will  not  be  set  aside  for  excessive  damages 866 


ABBOTTS' 
PRACTICE    REPORTS. 


NEW-YOKE. 


COCKLE  a.  UNDERWOOD. 

New  York  /Superior  Court :  Special  Term,  September,  1854. 

DISCONTINUANCE. — COUNTEK-CLAIM. 

After  a  counter-claim  has  been  set  up,  and  is  admitted  of  record,  the  plaintiff  will 

not  be  allowed  to  discontinue  as  a  matter  of  course.* 
Special  grounds  must  be  shown  in  such  case,  in  favor  of  an  application  for  leave  to 

discontinue. 

Motion  for  leave  to  discontinue. 

The  answer  to  the  complaint  in  this  action  denied  the  in- 
debtedness alleged  in  the  complaint,  and  also  set  up  a  counter- 
claim. It  was  served  June  10,  1854.  The  plaintiff  examined 
both  of  the  defendants  as  witnesses,  and  then,  on  the  13th 
September  following,  no  reply  having  been  meanwhile  put  in, 
he  served  written  notice  of  discontinuance  of  the  action,  ten- 
dering defendants'  costs,  which  they  refused  to  accept.  He 


*  Upon  an  appeal  to  the  General  Term,  this  decision  was  unanimously  affirmed. 
See  also  on  this  subject,  Seaboard  and  Roanoke  R  R.  Co.  a.  Ward,  post. 

1 


ABBOTTS'  PRACTICE  REPORTS. 


Cockle  a.  Underwood. 


forthwith  served  an  order  to  show  cause  why  the  action  should 
not  be  discontinued  on  payment  of  defendants'  costs. 

12.  E.  Jfount,  for  plaintiff. 
Wm.  BlisSj  for  defendants. 


BOSWORTH,  J.  —  This  motion  is  made  on  the  theory,  that  the 
plaintiff  is  entitled,  on  paying  defendants'  costs  of  the  action, 
to  such  an  order  as  he  moves  for,  as  a  matter  of  course. 
Under  the  old  system,  a  plaintiff  could  enter  a  rule,  in  the 
hook  of  common  rules,  discontinuing  the  action  on  payment 
of  costs.  Such  a  rule,  in  an  action  at  law,  could  be  entered 
at  any  time  before  trial,  without  an  application  to  the  Court.  — 
Graham's  Pr.,  663-4. 

In  the  Court  of  Chancery,  the  complainant  might  move  to 
dismiss  his  own  bill,  with  costs,  as  a  matter  of  course,  at  any 
time  before  the  decree.  This  is  stated  in  the  books  of  practice 
to  be  the  rule.—  1  Barb.  Ch.  Pr.,  228. 

The  practice  of  the  Courts,  as  it  existed  when  the  Code  took 
effect,  consistent  with  the  Code  itself,  is  continued,  subject  to 
the  power  of  the  Courts  to  relax,  modify  or  alter  the  same.  — 
Code,  §  469. 

The  plaintiff  insists  that  the  pre-existing  practice,  in  relation 
to  discontinuing  actions,  is  consistent  with  the  provisions  of  the 
Code,  and  that  it  has  not  been  modified  by  any  rule  of  the  Su- 
preme Court,  or  of  this  Court.  The  defendants  on  the  other 
hand  contend,  that  the  practice  allowing  a  plaintiff  to  dismiss 
his  action  before  trial,  as  a  matter  of  course,  on  payment  of 
costs,  is  inconsistent  with  certain  provisions  of  the  Code. 

Sections  149  and  150,  allow  a  defendant  to  set  up  a  counter- 
claim, and  recover  upon  it  ;  if  admitted  by  failing  to  reply  to 
it,  or  on  proof  of  it,  if  it  is  controverted.  —  §§  168  and  274. 

If  the  action  of  the  plaintiff  arises  on  contract,  the  defendant 
may  set  up  as  a  counter-claim,  any  cause  of  action  arising  on 
contract,  whether  the  damages  are  liquidated  or  not.  This 
could  not  have  been  done  before  the  Code.  The  defendant 
may  notice  the  action  for  trial,  prove  his  claim  when  the  cause 
is  reached,  or  take  judgment  for  it,  if  admitted  by  the  plead- 


NEW-YORK 


Cockle  a.  Underwood. 


ings. — §  258.  In  this  respect  the  practice,  in  suits  at  law,  has 
been  altered.  The  object  of  the  Code  seems  to  be,  that  a  de- 
fendant sued  on  contract  and  having  causes  of  action  against 
the  plaintiff,  arising  on  contract,  may  litigate  them  in  that 
action,  and  have  a  judgment,  if  entitled  to  it. 

The  costs  of  an  independent  action  are  avoided  ;  one  claim 
may  be  used  to  satisfy  another,  to  the  extent  due  upon  it ;  the 
one  having  the  larger  claim  may  have  a  judgment  for  the 
excess  ;  each  party  is  made  an  actor  and  may  bring  the  action 
to  trial. 

There  would  seem  to  be  no  reason  for  permitting  a  plaintiff 
to  discontinue  on  the  mere  ground  of  his  disinclination  to  pro- 
ceed further  in  his  action,  especially  when  a  counter-claim  has 
been  set  up  in  the  answer,  and  no  reply  has  been  made,  and 
liberty  to  reply  is  not  asked. 

Cases  may  occur  which  would  justify  a  court  in  making 
such  an  order.  But  such  cases  must  present  some  grounds  to 
justify  the  inference  that  the  plaintiff  would  suffer  some  sub- 
stantial prejudice  if  the  order  was  not  granted. 

On  the  other  hand,  it  is  obvious  that  the  granting  of  such 
an  order  might  deprive  a  defendant  of  a  substantial  right.  If 
a  counter-claim  should  be  outlawed,  at  the  date  of  such  an 
order,  it  would  be  manifestly  unjust  to  grant  it.  Other  cases 
readily  suggest  themselves  in  which  it  would  be  improper  to 
grant  such  an  order  as  a  matter  of  course. 

It  is  unnecessary  to  undertake  to  state  any  rule  by  which  all 
applications  may  be  determined. 

It  is  sufficient  to  say,  that  after  a  counter-claim  has  been  set 
up,  and  admitted  of  record,  the  court  will  not  allow  the  plain- 
tiff to  discontinue  his  action,  as  a  matter  of  course ;  special 
grounds  must  be  shown  in  favor  of  the  application ;  they  must 
make  a  case,  rendering  such  an  inference  proper,  to  prevent  a 
plaintiff  from  being  inequitably  prejudiced  in  his  rights  or 
remedies,  and  which,  at  the  same  time,  will  not  work  any 
practical  wrong  to  the  defendant. 

The  motion  must  be  denied. 


ABBOTTS'  PRACTICE  REPORTS. 

Wilson  a.  The  Mayor  of  New-York. 


WILSON  a.  THE  MAYOR  OF  NEW-YORK. 
New-  York  Common  Pleas  ;    Special   Term,  July,   1854. 

ILLEGAL  TAXATION.  —  REMEDIES  AT  LAW.  —  DENIAL  OF 
INJUNCTION. 


The  power  to  determine  what  description  of  persons  shall  be  taxed,  is  vested  solely 
in  the  legislature. 

They  might  have  imposed  taxes  on  the  personal  property  within  the  State,  of  non- 
residents. 

But  they  have  not  done  so. 

A  non-resident  illegally  assessed,  has  several  remedies  at  law. 

1.  He  may  apply  upon  affidavit  to  the  assessors  to  rectify  their  assessment. 

2.  There  are  some  cases  where  a  certiorari  will  lie. 

3.  So  of  a  mandamus. 

4.  So  also  of  a  writ  of  prohibition. 

5.  There  are  other  modes,  depending  upon  the  circumstances  of  each  particular 
case,  in  which  an  illegal  assessment  may  be  redressed. 

6.  In  some  cases  the  assessors  themselves,  and  the  parties  issuing  the  original 
warrant  for  collecting  the  tax,  will  be  personally  liable. 

7.  Illegal  taxes  paid  under  duress  of  goods,  and  with  protest,  may  be  recovered 
back  at  law. 

An  injunction  to  restrain  the  collection  of  a  tax  illegally  laid  upon  personal  estate, 
will  not  be  granted. 

This  action  was  brought  to  restrain  the  collection  of  a  tax 
imposed,  illegally,  as  was  contended,  upon  the  plaintiff.  The 
facts  sufficiently  appear  in  the  opinion. 

A.  F.  Smith,  for  plaintiff. 
It.  J.  Dillon,  for  defendants. 

WOODRUFF,  J. — The  complaint  in  this  action  is  addressed  to 
this  court  as  a  court  of  equity,  and  prays  a  perpetual  injunc- 
tion to  restrain  the  collection  of  a  tax  for  the  year  1850, 
imposed  upon  the  defendant  as  the  owner  of  personal  property 
within  the  city  and  county  of  New- York,  for  the  collection  of 
which  a  warrant  has  been  issued  by  the  defendant,  Hart,  as 
Receiver  of  Taxes  for  the  city  and  county  of  New- York, 
directed  to  the  defendant,  Jenkins,  a  constable ;  in  pursuance 


NEW-YORK. 


Wilson  a.  The  Mayor  of  New- York. 


of  which,  the  latter  has  distrained  certain  property  of  the 
defendant,  and  is  proceeding  to  sell  the  same  for  the  collection 
of  such  tax.  The  facts  which  the  plaintiif  avers  entitle  him  to 
the  relief  sought,  are,  that  he  is'  illegally  assessed  in  the  city 
and  county ;  that  the  plaintiff,  during  the  whole  of  the  year 

1850,  and  for  eight  years  last  past,  has  resided  in  Norwalk,  in 
the  State  of  Connecticut,  and  has  not  resided  within  the  State 
of  New-York,  and  that  as  such  resident  of  Connecticut,  and  a 
taxable  inhabitant  therein,  he  has  been  duly  assessed  upon  his 
personal  property,  and  has  paid  taxes  thereon  in  that  state ; 
that  the  assessors  of  the  city  and  county  of  New- York  made 
the  assessment  of  the  amount  authorized  by  law  to  be  raised 
by  tax  upon  the  real  and  personal  property  in  the  city,  and 
under  the  pretence  that  the  plaintiff  was  a  taxable  inhabitant 
in  the  said  city,  did,  in  1850,  assess  him  as  the  owner  of  per- 
sonal property  in  the  third  ward  of  the  said  city ;  that  the 
assessment  roll  containing   such  assessment,  was  afterwards 
delivered  to  the  tax  commissioners  and  to  the  board  of  super- 
visors, and  submitted  to  their  action,  and  afterwards  the  cor- 
rected assessment  rolls  of  each  ward  were  delivered  to  the 
receiver  of  taxes,  with  the  usual  warrant  to  collect  the  tax, 
and  pay  the  same  to  the  chamberlain  of  the  city ;  that  the 
name  of  the  plaintiff  was  inserted  in  such  roll,  and  he  was 
charged  therein  with  $568^,  as  a  tax  upon  personal  prop- 
erty ;  that  the  plaintiff  received  no  notice,  and  did  not  know 
that  he  was  to  be  assessed,  nor  that  any  tax  had  been  imposed 
upon  him  or  his  property  until  long  after  such  assessment  roll 
had  been  delivered  to  the  said  receiver ;  that  soon  after  the 
plaintiff  learned  that  such  tax  had  been  imposed,  in  May, 

1851,  he  applied  by  petition,  verified  by  his  oath,  to  the  com- 
mon council,  stating  the  fact  of  his  non-residence,  and  praying 
the  remission  of  the  said  tax,  which  they  refused  ;  that  previ- 
ous to  this  petition,  to  wit,  in  January,  1851,  the  defendant, 
Hart,  (receiver  of  taxes,)  issued  his  warrant  to  the  defendant, 
Jenkins,  (a  constable,)  commanding  him  to  levy  the  amount 
of  the  said  tax,  with  interest  and  costs,  by  distress  and  sale  of 
the  goods  and  chattels  of  the  plaintiff,  and  such  distress  has 
been  made,  and  sale  thereof  will  be  made,  unless  restrained  by 
order  of  the  court. 


ABBOTTS'  PKACTICE  REPORTS. 


Wilson  a.  The  Mavor  of  New-York. 


The  complainant  then  avers,  that  it  will  be  the  duty  of  the 
defendants,  Hart  and  Jenkins,  to  pay  the  money,  if  collected, 
to  the  city  chamberlain ;  that  he  has  notified  Jenkins  of  his 
non-residence ;  that  Jenkins  persists  in  his  levy  ;  that  neither 
Hart  nor  Jenkins  are  of  sufficient  responsibility  to  answer  for 
the  damages  he  will  sustain  by  a  sale  of  his  property  under 
such  warrant ;  that  the  plaintiff  cannot  have  adequate  relief 
except  in  a  court  of  equity ;  that  such  tax,  so  attempted  to 
be  imposed,  is  illegal  and  void ;  that  such  illegality  does  not 
appear  on  the  face  of  the  proceedings,  but  that  the  evidence 
of  the  want  of  jurisdiction  in  such  assessors  to  impose  the  tax, 
and  of  the  illegality  of  such  imposition,  must  be  given,  out  of 
the  record  of  the  proceedings,  by  proof  of  extrinsic  facts,  upon 
proving  which,  the  plaintiff  is  entitled  to  have  the  assessment 
declared  illegal  as  to  him,  and  the  collection  of  the  tax  re- 
strained, &c. 

The  defendants  have  interposed  separate  demurrers  to  the 
complaint,  "  for  that  the  said  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action." 

It  was  insisted  by  the  counsel  for  the  defendants,  on  the 
argument  of  the  demurrers  herein,  that  the  plaintiff  is  liable 
to  taxation  in  this  state  in  respect  of  his  personal  property 
found  here  when  the  assessment  was  made  ;  and  that  inasmuch 
as  the  plaintiff  does  not  aver  that  he  had  at  that  time  no  per- 
sonal property  within  the  city  and  county  of  New  York,  he 
has  not  shown  that  the  assessment  was  either  illegal  or  erro- 
neous. 

I.  The  power  of  the  State  to  tax  all  property  within  its  lim- 
its, whether  real  or  personal,  cannot  be  denied.  Taxation  itself, 
for  the  purpose  of  maintaining  and  upholding  the  government, 
is  essential  to  the  idea  of  its  existence,  and  the  power  to  im- 
pose such  taxation,  is  said  to  reside  in  the  government,  as  a 
part  of  itself.  In  this  State,  while  the  constitution  recognizes 
the  existence  of  the  power  to  impose  taxes,  it  leaves  its  exercise- 
to  the  legislature,  and,  save  only  by  prescribing  certain  rules 
regarding  the  mode  of  enacting  laws  imposing  taxes,  it  has 
left  the  extent  of  taxation  and  the  manner  of  its  apportion- 
ment, solely  and  exclusively  to  the  wisdom  and  justice  of  the 
legislature.  In  one  section  of  the  constitution,  (§  5,  art.  7,) 


NEW-YORK. 


Wilson  a.  The  Mayor  of  New-York. 


the  particular  taxes  mentioned,  (for  the  increase  of  the  sinking 
fund  of  the  State,)  are  authorized  in  these  terms,  viz :  "  The 
legislature  shall,  by  equitable  taxes,  so  increase  the  revenues," 
&c.  And  it  may  be  assumed  as  within  the  spirit  and  meaning 
of  the  constitution,  that  all  taxes  should  be  equitable.  But  I 
apprehend,  that  in  the  apportionment  of  taxes,  and  the  assign- 
ing to  persons  or  to  property  the  portion  which  each  shall  con- 
tribute to  the  public  burthens,  the  legislature  have  the  sole 
•and  exclusive  power  of  determining  what  is  just  and  equitable, 
and  upon  what  description  of  persons,  and  upon  what  property 
within  the  State,  and  in  what  ratio,  the  imposition  shall  be 
made.  (See  Providence  Bank  v.  Billings,  4  Peters,  514  ;  McCul- 
lough  v.  Maryland,  4  Wheat.  428  ;  cited  in  The  People  v.  The 
Mayor,  &c.,  4  Comstock,  427".) 

II.  And  there  is  nothing  inequitable  in  requiring  of  the 
owners  of  personal  property  found  in  this  State,  and  kept  here 
protected  by  our  laws — it  may  be,  acquiring  enhanced  value 
from  our  institutions  and  government,  our  public  works,  the 
large  development  of  public  and  private  enterprise  within  our 
limits,  and  various  other  circumstances,  which  give  value  and 
usefulness  to  property,  and  hold  out  to  non-residents  an  induce- 
ment to  bring  or  send  their  property  or  funds  to  be  used  or 
sold  here,  that  they  may  derive  enhanced  prices  or  larger 
income  therefrom, — to  render  to  our  government  a  just  equiva- 
lent— to  bear  the  same  burthen,  in  respect  of  such  property, 
as  the  citizen  himself  bears,  in  respect  of  his  own  estate,  in  the 
like  condition. 

On  the  contrary,  if  the  question  be  judged  of  upon  the  sim- 
ple inquiry,  what  is  equitable,  as  between  those  who  bring 
their  wealth  to  our  State  and  city,  and  here  avail  themselves 
of  our  facilities  for  trade,  commerce  and  enterprise  of  every 
kind,  seek  and  obtain  our  protection,  become  competitors  for 
the  gains  and  profits  of  that  business  which  we  have  done  so 
much  to  facilitate  and  promote,  and  bear  away  the  enhanced 
income,  which  (by  reason  of  the  advantages  of  our  location, 
the  character  of  our  institutions,  the  encouragement  we  give 
to  private  enterprise,  and  the  facilities  which  our  public  works 
aiford)  they  have  been  able  to  acquire  ;  if  what  is  equitable 
between  them,  be  the  sole  guide  in  the  apportionment  of  taxa- 


ABBOTTS'  PEACTICE  REPORTS. 


Wilson  a.  The  Mayor  of  New-York. 


tion,  it  may  be  said  with  great  truth,  that  they  should  share  in 
proportion  to  the  benefits  enjoyed,  and  no  fairer  criterion 
could  be  devised,  than  the  amount  of  property  so  employed 
and  so  protected.  To  say  that,  because  one  of  them,  after  the 
heat  and  labor  of  the  day — after  the  accomplishment  of  the 
purpose  for  which  he  is  employing  his  property  here, — crosses 
the  river,  or  the  Connecticut  line,  to  seek  the  sleep  necessary 
to  restore  his  vigor  for  the  next  day's  contest  with  his  citizen 
rival,  though  he  leaves  his  property  secure  and  protected 
tinder  the  efficient  guardianship  we  provide,  he,  nevertheless, 
ought  to  pay  nothing,  and  his  resident  competitor  in  the  strife 
for  wealth,  should  pay  all ;  or,  to  say  that  his  contribution 
shall  only  be  given  to  the  sovereignty  that  protects  him  in  his 
sleeping  hours,  is  plainly  inequitable,  and  if  no  other  consid- 
erations but  such  as  respect  those  individuals  be  taken  into 
view,  is  unjust. 

And  the  present  plaintiff,  in  this  aspect  of  the  case,  would 
have  no  just  ground  of  complaint,  if  engaged  in  business  in 
this  city,  and  employing  his  capital,  and  enjoying  the  advan- 
tages above  suggested,  our  government  should  require  from 
him  an  equivalent  therefor,  by  levying  upon  his  capital  the 
same  contributions  which  our  own  citizens  are  required  to  pay 
for  the  common  benefit,  notwithstanding  it  suits  his  conve- 
nience or  pleasure  to  fix  his  domicil  just  without  our  borders. 

But  in  the  exercise  of  the  power  of  taxation,  and  in  its 
apportionment,  considerations  of  expediency  do  and  may  prop- 
erly influence  the  legislature  in  their  enactments ;  and  it  is 
eminently  desirable  that  while  equality  is  to  a  certain  degree 
sought,  uniformity  in  the  rule  of  taxation  should  obtain  ;  and 
it  may  often  be  <£ue  that  what  is  upon  the  whole  best  for  the 
State,  results  in  a  seeming  inequity  as  between  individuals  or 
inequality  between  particular  cases;  while  comity  towards 
other  states  may  also  be  properly  regarded.  Thus,  if  the 
legislature  were  to  tax  the  personal  property  of  non-residents, 
consistency  and  comity  would  require  that  the  personal  prop- 
erty of  our  own  citizens  employed  or  invested  out  of  this  State 
should  be  exempt  from  taxation  here.  So  the  policy  of  the 
State  may  require  that  non-residents  should  be  encouraged  to 
bring  or  send  their  funds  to  this  State  for  employment  or  invest- 


NEW-YOKE. 


Wilson  a.  The  Mayor  of  New- York. 


inent,  and  our  community  may  realize  therefrom,  in  other 
modes,  advantages,  which  in  the  end  fully  compensate  for  the 
immunity  from  taxation,  which  is  accorded  to  them. 

III.  But  it  is  unnecessary  to  pursue  this  branch  of  the  sub- 
ject. The  inquiry  is,  in  this  tribunal,  not  what  property  might 
equitably  be  taxed  nor  what  property  it  is  expedient  to  tax, 
but  what  property  is  by  law  taxable  ? — what  has  our  legisla- 
ture by  its  enactments  made  taxable  ? 

And  on  this  .subject  I  have  no  doubt  that  our  legislature 
intended  to  recognize,  and  have  recognized  and  adopted  in 
reference  to  taxation,  the  general  rule  that  personal  property 
has  no  situs — that  it  follows  the  domicil  of  its  owner,  and  that 
the  incidents  to  the  ownership,  in  this  respect,  as  in  many 
others,  (e.  g.  the  law  of  its  distribution  on  the  death  of  its 
owner,  and  its  administration  by  courts  of  probate  ;  its  trans- 
fer by  assignment ;  the  rights  of  creditors  thereto  under  attach- 
ment, after  such  assignment,  and  the  like,)  are  governed  by  the 
law  of  the  domicil. 

It  is  true  that  the  first  section  of  title  1st  of  chapter  13,  part 
1st,  of  the  Kevised  Statutes,  under  the  head  of  "Property 
liable  to  taxation,"  declares  that  "  all  lands  and  all  personal 
estate  within  this  State  shall  be 

liable  to  taxation,"  (with  certain  specified 

exceptions  not  material  to  the  present  inquiry). 

But  when  this  is  read  in  connection  with  the  generally 
recognized  rule  above  referred  to,  that  personal  property  has 
no  situs  apart  from  the  domicil  of  the  owner,  which  in  sub- 
stance imports  that  personal  property  is  not  within  the  mean- 
ing of  the  statute,  "  within  this  State,"  unless  its  owner  resides 
here,  it  is  entirely  consistent  with  its  exemption  from  taxation 
here  ;  and  to  my  mind  the  subsequent  provisions  of  the  same 
chapter  show  that  such  was  the  meaning  of  the  legislature. 

Thus  section  5  of  title  II.  enacts  that  "  every  person  shall  be 
assessed  in  the  town  or  ward  where  he  resides,  when  the 
assessment  is  made,  for  all  personal  estate  owned  by  him." 
This  may  be  said  to  imply  its  converse,  that  no  person  shall  be 
assessed  in  any  town  or  ward  in  which  he  does  not  reside. 

Again,  in  prescribing  the  duties  of  assessors,  section  9,  arti- 
cle 2,  of  same  title,  directs  them  to  prepare  an  assessment  roll, 


10  ABBOTTS'  PRACTICE  REPORTS. 

Wilson  a.  The  Mayor  of  New-York. 

in  the  first  column  of  which  they  shall  set  down  the  name  of 
all  the  taxable  inhabitants  of  the  town  or  ward,  and  in  the 
fourth  column  the  full  value  of  all  the  personal  estate  owned 
by  such  person. 

Section  11  provides  for  a  separate  assessment  of  lands 
belonging  to  non-residents,  but  no  provision  is  made  respecting 
personal  property  owned  by  a  person  who  is  not  an  inhabitant, 
thus  showing  that  no  such  assessment  was  contemplated,  and 
no  duty  imposed  upon  the  assessors  in  respect  of  the  personal 
estate  of  any  such  person. 

Section  15  prescribes  the  oath  to  be  taken  by  a  person 
assessed,  and  what  oath  shall  govern  the  amount  of  assessment ; 
and  this,  as  well  as  the  other  sections  above  referred  to,  make 
the  taxable  amount  embrace  all  personal  property  owned  by 
him.  This  shows  that  no  regard  whatever  is  had  to  the  place 
where  such  personal  property  may  happen  then  to  be ;  it  is 
treated  as  in  the  possession  of  its  owner. 

Surely  if  the  assessment  was  designed  to  embrace  property 
of  non-residents  which  might  be  found  here,  it  would  have 
exempted  the  property  of  residents  which  might  happen  to  be 
in  another  jurisdiction,  for  the  legislature  aiming,  as  we  must 
believe  they  would,  to  enact  a  just  rule,  would  undoubtedly 
assume  that  a  just  rule  here  would  be  a  just  rule,  and  would  be 
adopted,  within  such  other  jurisdiction  ;  and,  therefore,  if  the 
taxation  of  the  personal  property  of  a  non-resident,  was  proper 
here,  the  taxation  of  the  personal  property  of  our  citizens 
would  be  imposed  there.  And  hence,  that  if  we  tax  non-resi- 
dents here,  and  tax  all  the  property  of  our  own  citizens  also, 
the  latter  would  be  taxed  twice  on  the  same  subject. 

And,  moreover,  if  the  personal  property  of  a  non-resident  is 
taxable,  in  what  town,  ward  or  county  is  it  taxable?  There  is 
nothing  in  the  statute  which  can  answer  this  question  ;  and  for 
aught  contained  in  this  statute,  the  property  of  a  non-resident 
of  the  State,  may  as  well  be  taxed  in  Buffalo  as  in  New- York, 
or  in  Albany,  and  as  well  in  the  latter  place,  as  in  either  of 
the  former.  No  part  of  the  statute,  either  directly  or  by  impli- 
cation, makes  personal  property  taxable  in  the  town  or  city 
where  it  may  happen  to  be,  whether  it  belong  to  a  citizen 
or  not. 


NEW-YORK.  11 


Wilson  a.  The  Mayor  of  New-York. 


And,  finally,  there  is  no  clause  which  makes  it  the  duty  of 
the  assessors,  or  which  gives  them  authority  to  insert  in  the 
assessment  roll,  the  name  or  personal  property  of  any  person, 
who  is  not  an  inhabitant  of  the  town  or  ward ;  except  so  far  as 
the  provisions  in  relation  to  the  land  of  non-residents,  require 
that  land  so  owned  shall  be  taxed — [see  Yan  Rensselaer,  v. 
Cottrell,  1  Barb.  129,  below  referred  to,  that  it  is  necessary  to 
jurisdiction  of  assessors  over  personal  property,  that  the  owner 
be  an  inhabitant  of  the  town  or  ward,  <fec.] 

Whether  it  is  wise  and  expedient,  in  view  of  the  immense 
amounts  of  personal  property  employed  in  this  city,  in  the 
various  pursuits  of  trade,  commerce,  navigation  and  manufac- 
tures, by  persons  who  have  their  residence  just  without  our 
borders,  that  the  State  should  subject  it  to  taxation  for  the 
relief  of  our  citizens ;  and  whether  to  that  end  they  should 
make  the  carrying  on  of  such  business  here,  a  sufficient  resi- 
dence or  inhabitancy,  to  subject  such  persons  to  this  tax,  is  a 
question  exclusively  for  the  legislature.  There  is  no  doubt 
of  their  power,  if  they  think  its  exercise  will,  upon  the  whole, 
be  useful  and  proper.  As  the  law  now  is,  such  persons  are 
not  inhabitants,  nor,  in  my  opinion,  taxable  as  such. 

I  should  not  have  deemed  it  at  all  necessary  to  discuss  this 
question  at  so  great  length,  but  that  the  point  was  pressed  by 
the  counsel  for  the  defendants  on  the  argument,  and  that  the 
common  council  of  the  city,  appear  by  the  complaint  to 
have  had  the  question  urged  upon  them  by  the  plaintiff,  and 
to  have  persisted  in  the  claim,  that  he  is  liable  to  taxation 
here.  And  the  heavy  burden  of  taxation  borne  by  our  citi- 
zens, render  it  in  no  wise  remarkable,  that  the  city  authorities 
should  be  desirous  of  effecting  a  diminution  of  the  burthen  so 
far  as  they  legally  may,  by  extending  it  over  all  the  property 
protected  and  fostered  by  that  government,  to  the  mainte- 
nance and  support  of  which  the  taxes  are  applied.  Neverthe- 
less, in  the  further  view  which  I  have  taken  of  the  case  before 
me,  what  I  have  said  may  be  deemed  unnecessary,  because 
not  essential  to  the  determination  which  I  am  called  upon  to 
make. 

The  defendant's  counsel  further  insist,  that  this  case  is  not 


12  ABBOTTS'  PEACTICE  REPORTS. 

Wilson  a.  The  Mayor  of  New- York. 

within  the  jurisdiction  of  this  court,  as  a  court  of  equity,  and 
that  upon  this  ground,  the  plaintiff  must  fail  in  this  action. 

The  want  of  jurisdiction  is  not  named  as  aground  of  demur- 
rer. The  code  of  procedure,  in  section  144,  provides  that  the 
defendant  may  demur  to  the  complaint,  when  either  of  six 
causes  of  demurrer  appear  on  the  face  of  the  complaint.  The 
Jtrst  of  these  causes  is,  "  that  the  court  has  no  jurisdiction  of 
the  person  of  the  defendant,  or  of  the  subject  of  the  action  ;" 
and  the  sixth  is,  "  that  the  complaint  does  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action ;"  and  section  145  declares, 
that,  unless  the  demurrer  distinctly  specifies  the  grounds  of 
objection  to  the  complaint,  it  may  be  disregarded. 

The  defendants  here  rest  their  demurrer  solely  upon  the 
sixth  ground  above  referred  to. 

It  may  well  be  doubted  whether  upon  such  a  demurrer,  the 
defendants  were  at  liberty  (had  the  objection  been  taken)  to 
discuss  the  question  of  jurisdiction  at  all ;  and  whether  for  the 
purposes  of  the  issue  of  law  made  by  the  parties,  they  ought 
not  to  be  deemed  to  have  submitted  to  the  jurisdiction  of  the 
Court.  It  would  seem  that  the  legislature  intended  that  the 
demurrant  should  distinctly  apprise  his  adversary  of  the  pre- 
cise question  it  was  intended  to  discuss,  and  that  the  trial  of 
an  issue  of  law  should  be  confined  to  the  very  ground  of  demur- 
rer assigned.  And  the  enumeration  of  the  want  of  jurisdic- 
tion, being  one  of  the  six  causes  specifically  mentioned,  it 
should  not  be  availed  of  as  a  ground  of  demurrer,  unless  the 
demurrer  itself  assigns  it  specially. 

It  is  true  that  under  section  148,  the  objection  to  the  juris- 
diction of  the  Court  is  not  to  be  deemed  waived  by  the  omis- 
sion to  set  it  up,  either  by  demurrer  or  even  by  answer ;  still 
it  by  no  means  follows,  that  it  can  be  raised  on  the  argument 
of  a  demurrer  that  assigns  a  different  cause. 

Whether  if  not  so  set  up,  the  objection  should  only  be  per- 
mitted on  the  final  hearing — or  whether  and  how  far  it  can  be 
urged  in  any  and  what  other  stages  of  the  cause,  the  code  does 
not  provide.  But  it  is  at  least  doubtful  whether  on  the  argu- 
ment of  a  demurrer,  (e.  g.  specifying  for  cause,  "  that  several 
causes  of  action  have  been  improperly  joined,")  the  demurrant 


XEW-YORK.  13 


Wilson  a.  The  Mayor  of  New-York. 


should  be  permitted  to  depart  at  all  from  the  very  ground 
upon  which  the  demurrer  is  based. 

The  judgment  which  the  Court  is  called  upon  to  give,  is  a 
judgment  upon  the  very  issue  of  law  raised  by  the  parties  by 
their  pleadings. 

But  the  question  of  jurisdiction  was  discussed  at  length  on 
the  argument,  and  without  objection  on  the  part  of  the  plain- 
tiff. Probably  upon  a  view  of  the  subject  which  may  be 
sound,  viz :  that  the  want  of  jurisdiction  of  the  cause  of  action 
may  be  urged  in  any  and  all  stages  of  an  action,  whatever 
may  be  the  formal  question  before  the  Court.  Though  the 
form  of  the  judgment  upon  the  issue  of  law  presented,  might 
be  somewhat  embarrassing :  If  the  Court  are  of  opinion  that 
the  cause  of  demurrer  assigned  has  no  foundation,  how  can 
they  give  judgment  for  the  demurrant  upon  that  issue? 

Possibly  counsel  suppose,  that,  notwithstanding  the  provi- 
sions requiring  the  demurrant  to  specify  want  of  jurisdiction, 
when  that  is  the  ground  of  demurrer,  yet  that  if  it  appears  on 
the  argument,  that  the  cause  is  not  one  of  equity  cognizance, 
the  plaintiff  has  not  shown  that  in  this  action,  and  upon  this 
complaint,  he  has  a  cause  of  action  upon  which  the  Court  can 
give  him  any  relief.  This  is  a  somewhat  latitudinarian  con- 
struction of  the  meaning  of  the  code,  not  very  satisfactory  to 
my  mind.  The  power  of  the  Court  over  the  subject,  when  the 
jurisdiction  of  the  Court  is  voluntarily  submitted  to,  cannot  be 
questioned — it  has  often  been  exercised  in  this  State,  and  relief 
given,  as  will  appear  hereafter. 

I  do  not,  however,  wish  to  be  understood  as  giving  any 
decided  opinion  upon  the  construction  of  the  code,  or  upon  the 
rule  to  be  observed  in  this  particular.  The  counsel  for  both 
parties  have  concurred  in  submitting  the  question  of  jurisdic- 
tion as  properly  before  me  under  their  demurrers,  and  I  may 
therefore  properly  dispose  of  the  case  upon  that  question. 

And  under  the  course  of  decision  which  has  been  had  in  this 
State  in  like  cases,  the  precedents  do  not  furnish  a  very  satis- 
factory guide  to  a  result.  Upon  a  review  of  the  subject,  I  am 
nevertheless  brought  to  the  conclusion  that  the  plaintiff  has 
mistaken  his  remedy,  and  that  no  amendment  can  be  made 


14:  ABBOTTS'  PRACTICE  REPORTS. 

Wilson  a.  The  Mayor  of  New- York. 

which  will  entitle  him  to  any  relief  of  the  nature  sought  by  the 
present  complaint. 

Briefly,  the  reasons  for  this  conclusion  are,  that  by  a  wrong, 
such  as  is  complained  of  here,  no  irreparable  mischief  is 
threatened — no  cloud  is  thrown  over  the  title  to  any  real  estate, 
which  a  court  of  equity  may  properly  be  prayed  to  remove — 
and  the  remedy  is  ample  at  law,  without  invoking  the  powers 
of  the  court  as  a  court  of  equity,  which  alone  are  appealed  to 
in  this  action. 

IY.  To  trace  the  course  of  judicial  decision  in  this  State, 
and  point  out  the  mode  in  the  various  exigencies  which  may 
arise,  in  which  an  illegal  assessment  for  taxes  may  be  set 
aside  or  corrected,  or  its  collection  restrained,  or  the  wrong 
done  thereby  be  redressed,  is  not  an  easy  labor.  Upon  a  cur- 
sory inspection  of  the  cases  there  will  be  seen  to  be  no  little 
conflict ;  but  I  apprehend  that,  in  truth,  there  exists,  notwith- 
standing intimations  of  doubt  thrown  out  in  some  of  the 
opinions,  full  remedy  in  all  cases  in  which  personal  estate  only 
is  affected  thereby. 

1.  The  mode  of  rectifying  such  assessments  by  affidavit, 
while  the  assessment  roll  remains  in  the  hands  of  the  assessors ; 
(1  Rev.  Stats.  392-3.  Laws  of  1850,  ch.  120 ;)— the  notice 
they  are  required  to  publish  to  enable  persons  assessed  to  make 
such  correction ; — the  review  of  such  assessments  by  the  board 
of  assessors,  or  commissioners  of  taxes,  on  the  application  of 
any  person  conceiving  himself  aggrieved ;  (1  Rev.  Stats.  393, 
and  Laws  of  1850,  ch.  120.)  The  further  power  of  the  super- 
visors to  correct  the  rolls  and  remit  taxes3  (p.  395,  Laws  of 
1844,  ch.  205,  sec.  2,  and  Laws  of  1850,  ch.  120) ;— need  only 
be  mentioned.  In  many  respects,  no  doubt,  their  acts  are  final 
and  conclusive.  If  their  proceedings  are  regular,  and  they 
act  within  the  scope  of  their  jurisdiction,  following  the  direc- 
tions of  the  statute,  no  mere  error  in  the  valuation  of  the  pro- 
perty of  a  taxable  inhabitant,  or  in  the  exercise  of  their 
discretion,  or  in  determining  the  weight  or  sufficiency  of  evi- 
dence laid  before  them,  can,  I  apprehend,  be  reviewed  by  any 
tribunal. 

But  if  they  impose  a  tax  upon  property,  which  is  not  by  law 
taxable,  or  assess  a  person  who  is  not  liable  to  assessment,  or 


NEW-YOKE.  15 


Wilson  a.  The  Mayor  of  New- York. 


if  they  commit  errors  by  making  up  the  assessment  without 
complying  with  the  essential  requirements  of  the  statute,  or 
make  an  illegal  apportionment  of  the  taxes  imposed,  and 
whether  the  illegality  of  the  acts  appears  on  the  face  of  their 
proceedings,  or  arises  from  extrinsic  facts  to  be  proved  dehors 
the  proceedings  themselves,  I  have  no  doubt  a  review  may  be 
had,  or  redress  may  be  obtained. 

2.  Whether  a  certiorari  will  lie,  and  such  review  be  had 
thereon,  and  the  extent  of  such  review,  has  been  much  dis- 
cussed ;  if,  however,  a  review  be  had  by  certiorari,  it  can,  (ac- 
cording to  the  opinions  given  in  the  cases  mentioned  below,) 
only  reach  such  illegalities  as  are  apparent  upon  the  proceed- 
ings themselves,  (The  People  v.  The  Mayor,  &c.  of  New  York, 
2  Hill,  9,  and  the  Matter  of  Mount  Morris  Square,  2  Hill) 
27-8,  and  cases  cited,)  and  it  seems  questionable  whether, 
after  the  assessment  rolls  have  gone  into  the  hands  of  the  col- 
lector, and  the  warrant  has  issued,  any  review  by  certiorari 
would  avail  to  stay  the  collection  of  the  tax. 

That  the  Supreme  Court  have  power  to  grant  such  a  writ, 
and  thereupon  to  review  the  proceedings,  is,  however,  settled. 
Such  writ  was  granted  in  Storm  v.  Odell,  (2  Wend.  287,)  to 
review  the  assessments  for  a  school  tax,  and  in  Caledonian 
Company  v.  Trustees  of  Hoosick  Falls,  (7  Wend.  508,  and 
note  on  665,)  to  review  the  assessments  for  a  village  tax,  (and 
see  effect,  &c.  in  cases  cited  in  the  note.)  But  in  Lawton  v. 
Commissioners  of  Cambridge,  the  •  court  say :  "  though  the 
power  of  the  court  is  indisputable  ;"  there  are  cases  in  which 
they  will  not  interfere.  In  the  case  of  a  poor  rate,  they  will 
refuse  the  writ,  as  also  in  the  assessment  of  a  land  tax,  from  a 
regard  to  the  public  convenience,  (cites  2  T.  R.  235,  which 
refers  to  2  Strange,  932  and  975.) 

In  The  People  v.  the  Supervisors  of  Alleghany,  15  Wend. 
198,  and  The  People  v.  Supervisors  of  Queens,  1  Hill)  196,  and 
The  People  v.  the  Mayor,  &c.  of  New  York,  2  Hill,  9,  the 
subject  is  discussed  at  great  length,  and  although  the  power  of 
the  court  to  issue  the  writ,  and  review  the  proceedings  is 
asserted,  yet  it  is  declared  to  issue,  not  ex  debito  justitice,  but 
to  be  a  matter  within  the  discretion  of  the  court,  and  the  writ 
refused.  In  these  cases  the  illegality  alleged  the  allow- 


16  ABBOTTS'  PRACTICE  REPORTS. 



Wilson  a.  The  Mayor  of  New-York. 

ance  of  improper  county  and  town  charges,  which  increased 
the  amount  to  be  raised  by  taxation.  The  remarks  of  the 
court  indicate  that  in  general  such  writ  ought  not  to  be  allowed, 
by  reason  of  the  great  public  inconvenience  it  must  occasion. 
And  it  appears,  by  the  report  of  Mooers  v.  Smedley,  6  Johns. 
Ch.  JR.  30,  that  the  Supreme  Court  had  refused  the  writ  in  a 
like  case,  many  years  before.  In  the  matter  of  Mount  Morris 
Square,  2  Hill,  14,  where  a  writ  of  certiorari  was  applied  for, 
to  review  an  assessment  for  opening  a  public  square  was 
sought,  the  court  took  the  same  view  of  the  subject,  and  Judge 
Cowen  says : 

"  In  general  we  ought  not  to  allow  the  writ  where  assess- 
ments of  taxes  are  in  question,  which  affect  any  considerable 
number  of  persons.  If  there  be  a  want  of  jurisdiction^  even 
in  the  judicial  act  sought  to  be  reviewed,  or,  in  other  words,  if 
there  be  an  excess  of  legal  power  by  which  any  person's  rights 
may  be  injuriously  affected,  an  action  lies,  and  it  is  much  bet- 
ter that  he  should  be  put  to  this  remedy,  than  that  the  whole 
proceeding  should  be  arrested,  and  perhaps  finally  reversed  for 
such  a  cause."  And  yet,  in  the  People  v.  the  Mayor  &c.  of 
Brooklyn,  the  proceedings  in  an  assessment  for  a  sewer,  of  the 
same  nature  as  the  case  last  cited,  were  removed  to  the  Su- 
preme Court  by  certiorari,  and  reversed  or  annulled ;  (6  Ba/rb. 
209.)  And  like  proceedings  for  the  grading  of  a  street,  were 
in  the  same  manner  removed  and  annulled,  between  the  same 
parties  ;  (9  Barb.  535.)  And  still  another,  between  the  same 
parties,  was  in  like  manner  reversed,  which  is  not  reported 
from  that  court.  The  case  last  referred  to,  was  appealed  to  the 
Court  of  Appeals,  and  the  decision  reversed  upon  the  merits, 
and  not  upon  the  ground  that  the  proceedings  might  not  be  so 
annulled  on  certiorari,  but  Justice  Ruggles,  in  giving  the 
opinion  of  the  court,  makes  this  suggestion : — "It  is  well  set- 
tled, that  upon  a  common  law  certiorari,  the  court  will  not 
examine  the  proceedings  returned,  further  than  to  ascertain 
whether  the  inferior  tribunal  has  kept  within  its  jurisdictional 
limits."  (4=  Comst.  Ml.) 

In  Chegaray  v.  Jenkins,  (1  Selden,  382,)  the  same  member 
of  the  Court  of  Appeals,  waives  the  consideration  of  the 
question,  whether  an  erroneous  assessment  of  taxes  upon  real 


NEW-YORK.  17 


Wilson  a.  The  Mayor  of  New-York. 


estate  not  liable  to  taxation,  can  be  corrected  on  certiorari ; 
and  in  Morewood  v.  Hollister,  (2  Selden,  309,)  in  the  same 
Court,  in  discussing  the  proceeding  by  common  law  certiorari, 
it  is  said  : — "  The  Court  of  Review,  in  such  cases,  only  exam- 
ines to  see  if  the  officer  acquired  jurisdiction,  and  acted,  during 
the  whole  proceedings,  within  the  limits  of  the  jurisdiction 
acquired." 

In  most  of  the  cases  above  referred  to,  and  in  Van  Rens- 
selaer  v .  Cottrell,  (7  Barb.  127,)  and  in  Same  v.  Whitbeck, 
(ib.  133,)  "Weaver  v.  Devendolf,  (3  Z>enio,  119,)  and  Sheldon 
v.  Van  Buskirk,  (2  Comst.  473,)  the  making  of  the  assessment 
is  declared  to  be  a  judicial  act;  and  although  it  is  within  the 
power  of  kthe  court,  and  the  province  of  the  writ  of  certiorari, 
to  bring  such  proceedings  under  review,  it  is  manifestly  ac- 
cording to  the  course  of  the  decisions  referred  to,  to  confine 
the  exercise  of  the  power  of  the  court,  in  such  cases,  within 
very  narrow  limits,  and  in  general  to  withhold  it. 

So  far  as  this  branch  of  the  discussion  bears  upon  the  case 
before  me,  it  is  manifest  that  a  certiorari  could  be  of  no  avail 
to  the  present  plaintiff.  His  complaint  avers,  that  he  had  no 
notice  of  the  assessment  before  a  warrant  to  the  receiver  of 
taxes  to  collect  the  tax  was  issued-— and  not  being  a  resident 
of  the  State,  he  was  not  chargeable  with  any  notice  by  reason 
of  any  posting  of  notices  by  the  assessors,-  in  the  ward  in  which 
he  was  taxed.  If  the  proceedings  were  removed  by  certiorari, 
no  want  of  jurisdiction  would  appear  "on  their  face,  and  the 
cases  above  referred  to,  seem  to  show  that  no  proof  of  extrin- 
sic facts  could  be  taken  in  the  court  of  review,  for  the  purpose 
of  showing  the  want  of  jurisdiction  of  other  illegality.*  And 

*  NOTE. — See  an  elaborate  opinion  on  the  office  of  a  common  law  certiorari,  by 
Ch.  J.  Kinsey,  in  The  State  v.  Middlesex,  Coxe  Rep.  244,  in  which  the  Supreme 
Court  of  New  Jersey  received  evidence  of  facts  not  appearing  on  the  record.  And 
in  the  case  of  the  New  Jersey  Railroad  Co.  v.  Suydam,  2  Harr.  25,  and  cases 
therein  cited,  it  is  held  that  where  a  certiorari  issues  to  Commissioners,  or  other 
quasi  judicial  officers,  the  court  may  order  or  permit  proofs  to  be  taken  of  extrinsic 
facts,  showing  the  proceedings  to  be  illegal,  though  they  will  not  inquire  info  the 
merits  of  any  matter  within  the  jurisdiction  of  the  subordinate  tribunal.  I  did  not, 
however,  think  it  necessary  to  pursue  that  inquiry  further  than  to  report  what  is 
said  in  the  cases  in  our  own  State,  and  yet  the  practice  in  New  Jersey  seems  to  me 
calculated  to  secure  the  ends  of  justice,  and  to  be  quite  consistent  with  the  proper 
office  of  this  writ.  W. 

2 


ABBOTTS'  PRACTICE  REPORTS. 


Wilson  a.  The  Mayor  of  New- York. 


besides,  according  to  the  opinions  in  the  above  two  cases  cited 
from  15  Wend.  198,  and  1  Hill,  196,  such  certiorari  would  not 
operate  to  prevent  the  execution  of  the  warrant  which  issued 
before  the  plaintiff  had  notice,  and  therefore,  before  the  certi- 
orari could  have  been  obtained. 

3.  However  imperfect  or  inadequate  the  remedy  by  certio- 
rari may  be,  it  is  said  that  a  mandamus  is  proper  where  a  party 
has  a  legal  right,  and  there  is  no  other  appropriate  legal  rem- 
edy, and  where,  in  justice,  there  ought  to  be  one ;  (See  12 
Johns.  12.  414,  The  People  v.  The  Supervisors  of  Albany ;  ex 
parte  Nelson,  1  Cow.  417;  Hull  v.  Supervisors  of  Oneida,  19 
Johns.  It.  260 ;  Bright  v.  Supervisors  of  Chenango,  18  Johns. 
H.  242.)  In  these  cases,  jurisdiction  by  mandamus  was  enter- 
tained, to  compel  the  supervisors  to  allow  county  charges ; — 
in  one  of  them  made  peremptory,  and  in  two  denied  on  the 
merits — showing  that  those  bodies  who  control  the  subject  to 
which  this  suit  relates,  may  properly  be  reached  by  manda- 
mus, and  in  a  matter  of  strict  right,  not  resting  in  their  dis- 
cretion, may  be  compelled  to  conform  their  proceedings  to 
such  strict  legal  right  of  the  party  applying,  to  prevent  injus- 
tice. 

In  the  People  v.  The  Mayor,  &c.  of  New- York,  10  Wend. 
393,  a  mandamus  was  applied  for  to  compel  the  defendants  to 
execute  and  deliver  a  lease  on  a  sale  of  land  for  assessments, 
and  the  court  held  the  remedy  appropriate,  although  upon  the 
merits  of  that  case  they  refused  it. 

In  the  Bank  of  Utica  v.  City  of  Utica,  in  which  the  legality 
of  an  assessment  for  taxes  on  personal  property  of  the  defen- 
dants, which  they  claimed  was  not  liable  to  taxation,  was  the 
distinct  matter  in  controversy.  The  Chancellor  says,  (4  Paige, 
400,)  "  I  think  the  complainants  had  a  perfect  remedy  at  law, 
by  an  application  to  the  Supreme  Court  for  a  mandamus  to 
compel  the  common  council,"  (who,  by  their  charter,  have 
exclusive  control  of  the  assessment  and  collection  of  the  city 
taxes,)  "to  correct  their  assessments  and  taxation  if  it  was 
illegal." 

In  The  People  i>.  The  Supervisors  of  New- York,  18  Wend. 
605,  a  mandamus  was  applied  for  to  compel  the  defendants  to 
strike  from  the  tax  list  and  from  the  warrant  to  the  collector, 


NEW-YOKE.  19 


Wilson  a.  The  Mayor  of  New- York. 


the  names  of  the  relators.  The  power  of  the  court  to  order 
such  correction  of  the  tax  list,  while  such  list  remained  within 
the  control  of  the  defendants,  seems  not  to  have  been  doubted, 
though  the  application  was  denied  on  the  merits,  and  the  court 
intimate  that  under  the  particular  statute  relied  upon  by  the 
plaintiffs,  there  was  a  discretion  given  to  the  defendants,  or  a 
finding,  upon  the  sufficiency  of  proof  to  their  satisfaction,  to  be 
had,  in  relation  to  which  the  court  could  not  interfere. 

In  The  People  v.  The  Assessors  of  Watertown,  1  Hill,  616, 
a  mandamus  to  compel  the  assessors  to  strike  out  of  the  assess- 
ment roll  for  taxes,  an  assessment  upon  the  personal  property 
of  the  relators,  no  doubt  of  the  power  of  the  court  to  make  the 
order,  or  of  the  appropriateness  of  the  remedy  was  suggested, 
but  the  court  denied  the  motion  on  the  merits. 

In  The  People  v.  The  Supervisors  of  Niagara,  4  Hill,  20,  the 
defendants  h^d  struck  from  the  roll  of  assessments  for  taxes, 
certain  three  corporations,  and  the  relators  (being  tax-payers) 
moved  for  a  mandamus  to  compel  the  defendants  to  restore 
those  names  to  the  assessment  rolls ;  the  motion  was  heard  on 
the  merits.  No  objection  was  made  to  the  form  of  the  remedy, 
(all  formal  objections  being  waived,)  and  a  peremptory  manda- 
mus was  ordered  by  the  court. 

It  appears  by  the  report  of  Mooers  v.  Smedley,  6  Johns. 
Ch.  JR.  27,  that  where  the  error  complained  of  was  the  allow- 
ance, by  the  supervisors,  of  alleged  improper  county  charges, 
the  Supreme  Court  refused  a  mandamus,  but  on  what  ground, 
is  not  stated.  It  may  have  been  upon  the  merits,  or  possibly 
because,  the  warrant  having  already  issued,  the  collector,  as  a 
merely  ministerial  officer,  could  not  be  reached  thereby.  But 
the  learned  Chancellor  Kent,  in  that  case,  says,  "  the  superin- 
tending control  in  these  cases  has  always  been  exercised  by 
the  Court  of  Kings  Bench,  and  no  where  else,  and  that  court 
has  proceeded  by  certiorari,  mandamus,  prohibition,  informa- 
tion," &c. 

In  The  People  v.  Supervisors  of  Queens,  1  Hill,  196,  above 
referred  to,  (in  which  the  error  complained  of  was  also  the 
allowance  of  alleged  improper  county  charges,)  the  motion  was 
in  the  alternative  for  "  a  certiorari,  prohibition,  mandamus,  or 
some  other  writ,  process,  order,"  &c.  "  for  the  relief  of  the 


20  ABBOTTS'  PEACTICE  EEPOETS. 

Wilson  a.  The  Mayor  of  New- York. 

relator  and  other  tax-payers,"  &c. ;  but  it  appearing  that  the 
warrant  had  issued,  and  was  in  the  hands  of  the  collector ;  the 
subject  of  issuing  a  mandamus  for  the  correction  of  the  errors, 
was  disposed  of  by  Justice  Bronson,  by  the  remark,  "  I  do  not 
see  what  use  can  be  made  of  the  writ  of  mandamus  in  a  case 
like  this."  And  the  judge,  after  stating  that  motions  of  this 
kind  are  addressed  to  the  discretion  of  the  court,  proceeds  to 
consider  the  propriety  of  allowing  a  certiorari,  (as  above 
stated,)  and  having  first  come  to  the  conclusion  that  some  of 
the  objections  to  the  proceedings  have  no  foundation,  and  that 
as  to  the  propriety  of  the  charges  objected  to,  the  certiorari 
would  be  of  no  avail,  because  the  supervisors  would  return,  by 
their  finding,  that  they  are  proper  charges,  re-affirms  the  deci- 
sion in  the  People  v.  Supervisors  of  Allegheny,  15  Wend.  198, 
"  that  the  errors  of  the  Supervisors,  in  these  particulars,  cannot 
be  corrected  without  great  public  inconvenience,  and  denied 
the  writ." 

The  particular  circumstances  in  Mooers  v.  Smedley  and  the 
People  v.  Queens,  doubtless  warranted  the  denial  of  the  writ. 
But  they  are  not  inconsistent  with  the  opinion  that  this  writ 
may  often  be  appropriately  used  when  the  assessment  rolls  are 
still  within  the  control  of  the  proper  body,  and  they  are  exceed- 
ing their  jurisdiction  or  violating  the  clear  legal  right  of  an 
individual,  by  imposing  upon  him  an  illegal  tax,  where  they 
have  no  discretion  to  exercise.  The  other  cases  above  referred 
to,  appear  to  me  to  warrant  this  opinion,  and  where  the 
party  has  no  other  legal  remedy,  his  right  to  have  such  writ 
allowed  is,  I  think,  undeniable.  See  1  Jfill,  362,  Coxe  R.- 
250,  252. 

It  is,  however,  apparent  from  what  has  been  said,  that  the 
present  defendant,  having  no  notice  of  the  assessment  in  this 
case  until  after  the  warrant  issued  for  the  collection  of  tax 
issued,  could  not,  according  to  the  views  of  Judge  Bronson, 
have  made  a  mandamus  available  to  prevent  the  levying  of 
the  tax  by  the  collector.  The  supervisors  had  terminated 
their  action  on  the  subject,  and  transmitted  the  rolls  to  the 
collecting  officers ;  and  though  they  may  have  had  a  discre- 
tionary power  to  remit  a  tax,  I  apprehend  that  in  doing  so, 
they  would  have  acted  in  no  judicial  character,  but  in  the  exer- 


NEW-YORK.  21 


Wilson  a.  The  Mayor  of  New- York. 


cise  of  a  discretion,  governed  by  their  sense  of  justice,  in  which 
they  could  not  be  controlled. 

4.  The  relator,  in  the  case  last  above  referred  to,  also  asked 
for  a  writ  of  prohibition  to  the  town  collector  to  stay  the  levy- 
ing of  the  tax.  This  was  denied  on  the  ground  that  such  writ 
does  not  lie  to  a  ministerial  9fficer  to  stay  the  execution  of 
process  in  his  hands — that  it  is  directed  to  a  court  and  to  the 
jparty  prosecuting  an  action  or  legal  proceeding  therein.  (1  Hill, 
205.}  See  the  cases  cited.  , 

And  yet  in  The  People  v.  Works  there  referred  to,  (7  Wend. 
486,)  the  writ  of  prohibition  was  granted  commanding  the 
collector  of  taxes  to  desist  and  refrain  from  collecting  a  town 
tax,  and  directing  the  supervisor  of  the  town  not  to  receive 
the  sum  assessed,  and  not  to  pay  it  over  if  received.  The 
ground  of  the  decision  on  the  merits  was,  that  the  tax  was  ille- 
gally voted  at  a  special  town  meeting,  at  which  they  had  no 
power  to  act  on  the  subject,  and  also  that  it  was  raised  for  an 
illegal  purpose,  and  the  court  deemed  this  an  appropriate 
remedy,  and  one  provided  by  the  common  law  against  the  en- 
croachment of  jurisdiction,  to  keep  inferior  courts  and  tribu- 
nals within  the  limits  and  bounds  prescribed  to  them.  This 
decision,  however,  is  regarded  by  Judge  Bronson  as  no  au- 
thority for  the  allowance  of  the  writ,  though  the  point  was 
distinctly  decided.  In  the  cases  mentioned  above,  as  already 
suggested,  the  acts  of  the  assessors  are  said  to  be  judicial,  and 
there  would  seem  no  reason  in  the  nature  of  the  proceedings 
for  not  addressing  this  writ  to  them,  and  in  regarding  them, 
though  not  a  court,  in  name,  as  liable  to  be  restrained  in  an 
excess  of  jurisdiction  when  they  exceed  its  limits.  In  Breedon 
v.  Gill,  5  Mod.  272,  the  Commissioners  of  Appeal,  on  the  im- 
position of  an  excise,  were  deemed  a  tribunal  to  be  restrained 
by  such  a  writ,  and  were  restrained  by  the  Court  of  King's 
Bench.  And  it  would  seem  that  in  South  Carolina  the  collec- 
tion of  a  tax  has  been  restrained  in  the  same  manner,  Buyn  v. 
Carter,  1  McMillan,  410 — under  what  precise  circumstances,  I 
have  not  been  able  to  learn.  In  view,  however,  of  the  decision 
in  the  Supreme  Court  in  1  Hill)  196,  which  is  certainly  in  ac- 
cordance with  the  proper  office  of  this  writ,  so  far  as  it  was 
then  sought  to  address  it  to  a  ministerial  officer,  it  is  apparent 


22  ABBOTTS'  PRACTICE  REPORTS. 


Wilson  a.  The  Mayor  of  New-York. 


that  the  writ,  if  it  be  allowable  at  all,  must  be  obtained  while- 
there  is  some  act  to  be  done  or  omitted  by  the  assessors  them- 
selves or  the  supervisors.  And  in  the  present  case,  the  want 
of  notice  and  the  fact  of  non-residence  renders  such  a  resort 
of  no  avail  to  this  defendant,  unless  the  prohibition  can  be 
made  to  restrain  the  execution  of  the  warrant,  which,  accord- 
ing to  the  case  last  mentioned,  it  cannot. 

5.  There  are  other  modes  in  which,  if  the  injury  caused  by 
an  illegal  assessment  cannot,  in  a  particular  case,  be  prevented 
by  either  of  the  proceedings  above  adverted,  it  may  neverthe- 
less be  fully  redressed,  and  by  action  at  law.  Each  case  in- 
this  respect,  however,  depending  upon  its  own  circumstances- 

It  was  argued  by  the  defendants'  counsel,  that  if  the  assess- 
ments be  illegal,  all  parties  attempting  to  enforce  its  collection 
are  trespassers,  and  besides,  that  the  purchaser  at  a  sale  under 
the  warrant  of  distress  would  take  no  title. 

This  proposition  is  wholly  unwarranted,  and  is  opposed  to 
the  best  settled  rules  of  law  on  this  subject. 

When  the  warrant  is  regular,  and  no  illegality  and  no  want 
of  jurisdiction  in  the  authority  by  whom  it  was  issued  appears 
on  its  face,  the  officer  is  fully  protected,  and  this  is  true  of  the 
warrant  complained  of  in  this  action. 

It  is  only  where  the  illegality  or  want  of  authority,  appears 
on  the  face  of  the  warrant  itself,  that  it  fails  to  protect  the 
officer  to  whom  it  is  directed  for  execution. 

In  The  People  v.  Albany  C.  P.  7  Wend.  485,  the  warrant  is 
declared  to  authorize  the  taking  of  goods  by  the  officer. 

In  The  Columbian  Manufacturing  Co.  v.  Vanderpool,  4  Cow. 
556,  trespass  was  brought  against  the  collector,  upon  the 
ground  that  by  law,  the  property  of  a  manufacturer  of  cotton,. 
&c.  was  exempt  from  taxation  ;  no  question  of  the  liability  of 
the  collector  appears  to  have  been  raised,  and  the  action  was 
decided  upon  the  ground  that  the  plaintiffs  were  properly  taxed, 
which  question  was  alone  discussed. 

In  Wheeler  v.  Anthony,  10  Wend.  346,  which  was  also  tres- 
pass against  the  collector,  the  imperfection  in  the  tax  list  and 
warrant  referring  thereto,  were  not  such  as  to  deprive  the  de- 
fendant of  his  justification  of  the  taking. 

In  The  Bank  of  Utica  v.  City  of  Utica,  4  Paige,  400,  ther 


NEW-YORK.  23 


Wilson  a.  The  Mayor  of  New- York. 


the  chancellor  says,  that  where,  as  in  that  case,  the  illegality 
appears  on  the  face  of  the  warrant,  the  complainants  have  an 
adequate  and  certain  remedy  at  law  by  an  action  of  trespass 
if  the  warrant  be  enforced  by  a  sale,  &c. 

And  in  Sheldon  v.  Yan  Buskirk,  2  Comst.  475,  which  was 
also  trespass  against  a  collector  of  taxes,  it  was  held  by  the 
Court  of  Appeals,  that  the  warrant  being  on  its  face  in  proper 
legal  form,  and  issued  by  persons  having  lawful  authority  to 
make  and  issue  a  warrant  for  such  a  purpose,  the  officer  was 
protected  thereby.  See  to  the  like  effect,  Yan  Rensselaer  v. 
Cottrell,  7  Barb.  132,  and  same  v.  Whitbeck,  i~b.  143.  And 
still  more  recently  in  the  same  court,  in  Chegaray  v.  Jenkins, 
1  Seld.  382,  on  appeal  from  the  judgment  of  the  Superior 
Court  of  this  city,  (3  Sand.  409,)  it  is  held,  that  the  warrant 
having  been  issued  by  the  proper  officers,  and  there  being 
nothing  on  its  face  showing  a  want  of  authority  in  the  assessors 
to  make  the  assessment  complained  of,  or  in  the  supervisors  in 
confirming  it,  or  the  receiver  of  taxes  in  issuing  the  warrant, 
and  being  in  due  form  of  law,  it  was  a  perfect  justification  to 
the  officer,  even  although  the  tax  was  illegally  imposed  upon 
the  plaintiffs  property. 

6.  The  assessors  themselves,  however,  and  in  some  cases,  the 
parties  by  whom  the  original  warrant  for  the  collection  of  the 
tax  is  issued,  may  be  liable.  Their  acts,  so  far  as  they  exceed 
their  jurisdiction,  do  not  protect  them  from  liability  to  make 
full  reparation  for  any  injury  which  results  therefrom. 

It  was  indeed  argued  on  the  hearing,  that  they  have  exclu 
sive  jurisdiction  to  determine  who  are  taxable  inhabitants,  and 
what  is  taxable  property,  and  if  so,  their  acts  are  conclusive 
and  final.  Such  a  rule  could  not  be  tolerated,  and  is  not  at  all 
sustained  by  the  cases  cited  to  support  the  proposition,  and 
this  sufficiently  appears  by  a  series  of  decisions  in  this  State. 

In  Saunders  v.  Springsteen,  4  Wend.  429,  the  defendants,  as 
assessors  of  the  town  of  Lewiston,  assessed  the  plaintiff's  land, 
which,  by  law,  was  not  taxable  in  that  town,  and  the  tax  was 
collected.  In  an  action  on  the  case  against  them,  they  were 
held  liable,  and  the  judgment  was  affirmed  in  the  Supreme 
Court. 

In  The  Ontario  Bank  v.  Bunnell,  10  Wend.  186,  trespass 


24  ABBOTTS'  PRACTICE  REPORTS. 


Wilson  a.  The  Mayor  of  New-York. 


was  brought  against  the  trustees  of  a  village.  The  court  held, 
that  the  plaintiffs  were  liable  to  be  taxed  in  the  village,  and 
the  plaintiffs  therefore  failed ;  but  no  doubt  was  suggested  that 
if  the  plaintiffs  had  not  been  taxable,  a  recovery  might  have 
been  had.  And  in  this  case,  the  true  distinction  between  cases 
in  which  a  liability  does  and  does  not  exist,  is  alluded  to,  viz : 
that  in  so  far  as  the  error  consisted  in  an  over  estimate  of  the 
amount,  where  the  party  is,  in  fact,  a  taxable  inhabitant,  such 
error  could  not  avail  in  such  an  action.  That  matter  was 
within  the  jurisdiction  of  the  assessors,  and  to  be  otherwise 
corrected,  if  they  erred.  (See  also  4  Wend.  223,  and  18  Wend. 
608.)  In  the  matter  of  Mount  Morris  Square  above  referred 
to,  (2  Hill,  29,)  the  court  says,  if  there  be  a  want  of  jurisdic- 
tion, or  an  excess  of  legal  power,  even  though  the  act  be  ju- 
dicial in  its  nature,  an  action  lies. 

In  Smith  v.  Randall,  3  Hill,  497,  the  trustees  of  a  school 
district  were  sued  in  trespass ;  but  the  alleged  error  was  in  the 
warrant  itself,  under  which  the  property  was  taken. 

In  Gale  v.  Mead,  4  Hill,  109,  238,  the  defendants  were  sued 
in  trover  for  a  horse,  taken  by  a  tax  collector,  under  a  war- 
rant issued  by  them  as  trustees,  for  a  school  tax,  and  the  court 
being  of  opinion  that  the  assessment  and  tax  list  made  by  them 
was  illegal,  they  were  held  liable. 

In  Weaver  v.  Devendorf,  3  Den.  120,  also  an  action  against 
trustees,  taken  by  a  tax  collector,  under  a  warrant  issued  by 
the  defendants,  to  collect  an  assessment  made  by  them,  upon 
the  plaintiff's  property ;  the  distinction  above  alluded  to  is 
maintained ;  that  the  defendants  as  assessors,  had  jurisdiction 
of  all  the  taxable  inhabitants  in  the  town,  and  therefore  of  the 
plaintiff  and  his  property,  and  for  an  error  in  judgment  in 
fixing  its  value  are  not  responsible ;  but  that  this  exemption 
from  liability  only  exists  where  there  is  jurisdiction  of  the  par- 
ticular case,  and  if  the  limits  of  their  authority  be  transcended, 
they  are  responsible  for  all  the  consequences. 

In  Prosser  v.  Secor,  5  Barb.  607,  the  application  of  this 
rule,  made  in  the  last  case,  is  questioned  and  condemned ;  but 
the  rule  itself  is  even  more  strenuously  insisted  upon.  And  it 
is  held  that  assessors  have  no  authority  to  enter  any  person's 
name  on  the  assessment  roll,  whose  property  is  by  law  exempt 


NEW-YOKE.  25 


Wilson  a.  The  Mayor  of  New- York. 


from  taxation,  or  to  impose  any  assessment  thereon  ;  that  they 
have  no  jurisdiction  whatever  over  such  persons  or  their  prop- 
erty. The  court  add  that  the  assessment  of  the  value  is  a 
judicial  act,  upon  which  a  common  law  certiorari  will  lie ;  and 
that  inferior  tribunals  are  bound  to  see  that  their  acts  are 
within  the  scope  of  their  authority.  They  could  not,  by  de- 
ciding, themselves,  that  the  plaintiff  was  a  taxable  inhabitant, 
bring  him  within  their  jurisdiction.  No  officer  can  acquire 
jurisdiction  by  deciding  that  he  has  it.  This  was  an  action 
on  the  case,  against  the  assessors  of  a  town,  and  they  were 
held  responsible  for  the  taxes  illegally  assessed  and  levied,  and 
collected  from  the  plaintiff. 

In  Van  Eensselaer  v.  Cottrell,  7  Bar!).  127,  Justice  Harris 
says  the  only  fact  necessary  to  the  jurisdiction  of  the  assessors, 
is  in  reference  to  personal  property,  that  the  owner  be  an 
inhabitant  of  the  town  or  ward,  and  if  they  should  assume  to 
assess  lands  lying  in  another  town,  or  to  assess  an  inhabitant 
of  another  town  for  personal  property,  though  it  might  be 
situated  in  their  town,  the  act  of  the  assessors  would  unques- 
tionably be  void  for  want  of  jurisdiction.  The  case  of  Yan 
Kensselaer  v.  Whitbeck,  ib.  133,  decided  by  the  same  judge, 
at  first  perusal,  seemed  to  conflict  with  the  one  last  cited,  since 
there,  the  plaintiff  objected  that  he  was  assessed  for  rents  in 
Greenbush  as  personal  estate,  when,  in  fact,  he  resided  else- 
where ;  and  yet  the  assessment  was  sustained.  But  on  exam- 
ining the  statute  (Laws  of  1846,  ch.  327)  under  which  rents  are 
taxed,  it  will  be  seen  that  though  taxed  as  personal  estate,  they 
are  directed  to  be  taxed  in  the  town  within  which  the  lands 
demised  may  lie,  and  in  the  same  manner  and  to  the  same 
extent  as  any  personal  estate  of  the  inhabitants  of  the  town. 
No  respect  (in  reference  to  this  species  of  property,)  is  had  to 
the  residence  of  the  owner,  and  so  far  as  relates  to  the  juris- 
diction of  the  assessors  to  include  it  in  the  assessment,  it  is 
treated  as  if  it  were  a  part  of  the  land  out  of  which  it  issues. 

I  understand  the  same  view  of  the  effect  of  the  decision  of 
the  assessors,  upon  the  question  of  their  own  jurisdiction,  to  be 
stated  by  Kuggles,  Chief  Justice,  in  his  opinion  in  the  Court 
of  Appeals,  in  Chegaray  v.  Jenkins,  (1  Seld.  381.)  Though  he 
held  the  collector  protected  by  the  warrant,  he  says,  "the 


ABBOTTS'  PEACTICE  EEPOKTS. 


Wilson  a.  The  Mayor  of  New-York. 


decision  of  the  assessors  on  a  question  in  which  their  own  au- 
thority to  act  was  involved,"  (i.  e.  upon  the  question  whether 
the  property  in  question  could  by  law  be  assessed,)  "  was  not 
for  all  purposes  conclusive;"  and  even  "in  collateral  actions 
their  judgments  may  be  questioned  and  disregarded,  if  it  ap- 
pear that  in  fact  they  had  no  authority  to  act  in  the  given 
case."  Upon  this  reference  to  the  cases  in  this  State,  and  in 
view  of  what  I  conceive  to  be  just,  as  well  as  in  conformity 
with  sound  principle,  I  can  not  doubt  that  assessors  are  liable 
for  inserting  in  the  assessment  roll  the  name  of  a  person  who 
is  not  an  inhabitant  of  the  town  or  ward.  It  is  their  duty  to 
ascertain  who  are  inhabitants  of  the  town  or  ward,  and  it  is 
only  as  to  such  that  they  have  any  authority  whatever  as  as- 
sessors of  personal  property.  This  may  sometimes  be  difficult, 
but  every  office  brings  with  it  duties  and  responsibilities,  and 
it  is  not  just  to  those  who  may  be  prejudiced,  nor  wise  as  it 
respects  the  public,  that  an  officer  who  exceeds  his  authority, 
should  not  be  liable  for  the  consequences.  The  insertion  of 
the  name  of  an  individual  in  the  assessment  roll,  is  an  affirm- 
ative act,  and  the  assessor  is  not  under  any  duty  to  make 
such  insertion,  till  he  knows  the  facts  upon  which  the  liability 
of  such  person  depends ;  and  to  hold  assessors  irresponsible, 
when,  through  want  of  proper  information,  they  assess  non- 
residents for  personal  property,  might  lead  to  great  abuse. 
And  to  say,  further,  that  the  decision  of  the  assessor  himself, 
is  conclusive,  would  enable  a  town  or  county  to  tax  half  the 
inhabitants  of  the  United  States,  and  so  far  as  property  of 
the  latter  could  be  found  in  the  county,  collect  the  tax  by 
distress  and  sale.  If  assessors  attempt  this,  I  think  them  lia- 
ble for  all  the  damages  resulting  from  their  unauthorized  act. 

How  far  the  supervisors  are  also  liable  for  lending  to  such 
illegal  act  their  authority,  may,  perhaps,  depend  upon  the 
question  whether  they  have  actual  notice  of  the  illegality. 

Y.  I  apprehend  that  the  remedy  of  a  party  illegally  assessed 
— that  is,  assessed  when  there  is  no  legal  right  to  impose  any 
tax  upon  him — does  not  cease  here.  If  such  tax  be  collected 
by  distress  and  sale  of  his  goods,  or  if  upon  the  levying  of-  a 
warrant,  he  pays  the  tax  to  save  his  property,  he  may,  I  think, 
sue  for  and  recover  back  the  money  so  paid;  and  that  in 


NEW-YOKE.  27 


Wilson  a.  The  Mayor  of  New- York. 


such  case,  the  body  to  whom  the  tax  is  paid  by  the  collector, 
are  responsible.  If  this  be  so,  the  allegation  in  the  complaint 
herein,  that  the  defendants,  Jenkins,  the  constable,  and  Hart, 
receiver  of  taxes,  are  not  of  sufficient  responsibility,  &c.  does 
not  add  any  material  fact  to  the  plaintiffs  case. 

The  money  is  obtained  in  such  case  by  duress  of  the  plain- 
tiff's property,  which  may,  when  paid,  be  recovered  back.  It 
is  an  illegal  exaction  without  right,  and  gives  the  party,  for 
whose  benefit,  or  by  whose  authority  it  is  obtained,  no  title. 

In  other  States,  the  precise  proposition,  that  if  one  pays 
taxes  that  are  illegally  assessed  upon  him,  he  may  recover 
back  the  money  is  adjudged.  A.  &  0.  Manufacturing  Com- 
pany v.  Inhabitants  of  Amesbury,  17  Mass.  461  ;  Perry  v. 
Dover,  12  Pick.  206 ;  Sumner  v.  Parish  in  Dorchester,  4=  ib. 
341 ;  Atwater  v.  Woodbridge,  6  Conn.  223 ;  Preston  v.  Bos- 
ton, 12  Pick.  7 ;  Adams  v.  Litchfield,  10  Conn.  127 ;  Boston 
and  S.  Glass  Company  v.  Boston,  4  Met.  181 ;  Dow  v.  Sud- 
bury,  5  Met.  73 ;  Torrey  v.  Milbury,  21  Pick.  64 ;  Joyner  v. 
Third  School  District  in  Egremont,  3  Gush.  567. 

Decisions  in  somewhat  analagous  cases  of  payment  by  duress 
of  property,  may  be  found  in  Ripley  v.  Grilston,  9  Johns.  S. 
201 ;  Clinton  v.  Strong,  ib.  370  ;  Elliott  v.  Swartwout,  10  Pet. 
137 ;  Bates  v.  New  York  Insurance  Company,  3  Johns.  C. 
238 ;  and  see  Harmony  v.  Bingham,  1  Duer,  209. 

Actions  to  recover  back  money  paid  for  taxes  alleged  to  be 
illegal,  have  frequently  been  brought  in  this  State,  and  in 
actions  brought  in  other  forms,  the  right  to  maintain  assump- 
sit  is  adverted  to.  Thus  in  Seaman  v.  Benson,  4  Barb.  448, 
where  the  plaintiff  failed  in  the  action  of  trover,  the  court 
says  : — "  If  the  plaintiff's  property  was  taken  and  sold  for  too 
much,  his  remedy  was  not  in  trespass  or  trover,  but  in  case  for 
the  injury  sustained,  or  in  assumpsit  against  the  trustees  of  the 
school  district,  for  the  excess  of  the  moneys,  &c."  In  Fleet- 
wood  v.  The  City  of  New  York,  2  Scmd.  481,  which  was 
brought  to  recover  back  money  paid  to  redeem  land  sold  for 
assessments,  the  court  held  the  plaintiff  not  entitled  to  recover, 
because  if  the  assessment  was  illegal,  there  was  no  lien,  and 
therefore  no  duress  nor  compulsion ;  and  the  court  adverts  to 
the  distinction,  and  to  the  cases  in  which  duress  of  personal 


28  ABBOTTS'  PEACTICE  REPORTS. 

_ _  ...  _. _  __  ______  _  _     _  ___   _     _  .--...,_-.  _  \ 

Wilson  a.  The  Mayor  of  New-York. 

property,  upon  seizure  thereof  by  public,  officers,  .under  process 
or  warrant  of  law,  constitutes  such  compulsion,  that  the  money 
paid  for  its  relief,  may  be  recovered  back. 

In  Re  Coutenix  v.  Supervisors  of  Erie,  7  Sari.  249,  action 
was  brought  to  recover  back  money  paid  upon  an  alleged 
illegal  assessment  for  personal  estate,  and  no  question  was  made 
of  the  liability  of  the  defendants  if  the  tax  was  illegal,  though 
the  case  was  decided  in  their  favor  by  sustaining  the  legality 
of  the  tax. 

And  in  the  Mutual  Insurance  Company  of  Buffalo  v.  the 
Supervisors  of  Erie,  4  Comst.  442,  the  action  was  the  same, 
and  was  decided  upon  the  same  ground.  No  doubt  was  sug- 
gested but  that  the  action  would  lie  ;  and  Gardiner,  J.  says  :— < 
"  The  only  question  in  this  cause  is  whether  the  appellant,  as  a 
corporation,  is  subject  to  taxation  according  to  the  laws  of  this 
State." 

V.  This  protracted  review  of  the  subject,  I  think,  sufficiently 
shows  that  the  plaintiff  in  this  case  is  not  without  remedy  at 
law,  and  that  in  some  or  one  of  the  modes  indicated  he  can 
obtain  redress,  or  could  have  had  a  remedy  adequate  to  his 
protection. 

There  can  be  no  pretence  of  irreparable  mischief — the  pro- 
ceeding can  only  take  a  certain  number  of  dollars  from  his 
pocket,  or,  at  the  worst,  personal  property  of  a  definite  ascer- 
tainable  value,  and  in  presumption  of  law  and  of  equity  also, 
a  like  sum  will  be  a  full  compensation  to  him. 

The  apprehended  insolvency  of  Jenkins  and  Hart  above 
alluded  to,  furnishes  no  ground  for  equitable  interference,  for 
the  reason  above  suggested. 

And  it  is  not  claimed  that  any  real  estate  is  affected  by  the 
acts  of  the  defendant,  the  title  to  which  is  affected  or  obscured. 

I  cannot,  therefore,  perceive  any  ground  for  the  interference 
of  a  court  of  equity  as  such.  Nor  that  there  is  a  case  here 
which  can  be  classed  under  any  head  of  equity  jurisdiction. 
And  although  there  are  cases  in  which  jurisdiction  in  equity 
has  in  this  State  been  entertained,  so  that  there  is  not  here  per- 
fect consistency  in  this  respect,  yet  the  current  of  the  decisions 
is,  I  think  clearly  against  the  relief  which  the  plaintiff  here 
seeks. 


NEW-YORK.  29 


Wilson  a.  The  Mayor  of  New-York. 


In  Mooers  v.  Smedley,  6  John.  Ch.  R.  p.  28,  Chancellor 
Kent  refused  to  enjoin  the  collection  of  an  alleged  illegal 
assessment. 

Whether  the  illegality  appeared  upon  the  face  of  the  pro- 
ceedings or  not,  does  not  distinctly  appear;  but  the  alleged 
error  consisting  in  the  allowance  of  improper  town  charges, 
he  wholly  disclaimed  any  jurisdiction  over  the  supervisors  to 
review  their  determination,  whether  legal  or  not,  and  declares 
the  superintending  control  to  be  in  a  court  of  law,  as  herein 
•above  cited. 

*  ;lh'-JThompson  v.  Ebbets,  1  Hop.  It.  272,  where  the  com- 
'pl'ainant  was  assessed  in  two  places  ;  he  was  permitted  to  inter- 
plead  the  two  collectors  of  the  taxes,  and  leave  them  to  con- 
test the  legality  of  their  respective  claims  to  the  t;ax  on  his 
personal  estate,  upon  the  question  of  residence.  But  no  objec- 
tion was  raised  to  the  jurisdiction,  and  the  action  was  enter- 
tained simply  as  an  interpleading  suit. 

In  the  Mohawk  &  Hudson  River  Railroad  Company  v. 
Clute,  4  Paige,  384,  where  also  the  complainant  had  been 
taxed  in  two  places  ;  the  bill  as  a  simple  bill  of  interpleader, 
wae  regarded  as  defective  in  form  and  insufficient  on  the 
merits.  The  chancellor,  however,  entertained  it  for  the  pur- 
pose of  an  injunction  as  to  one  of  the  defendants  whose  assess- 
ment was  illegal.  But  no  objection  to  his  jurisdiction  was 
made,  and  the  subsequent  decisions  of  the  chancellor  show 
that  if  he  considered  the  question  of  jurisdiction  at  all,  he 
must  have  retained  the  cause,  upon  some  ground  peculiar  to 
the  case  of  a  complainant  taxed  in  two  towns  on  the  same  pro- 
perty. 

For  in  The  Bank  of  Utica  v.  City  of  Utica,  4  Paige,  399, 
the  chancellor — distinctly  stating  that  the  complainants  have 
a  perfect  remedy  at  law, — finds  himself  bound  to  take  jurisdic- 
tion, because  the  parties  had  stipulated  to  waive  the  objection, 
and  thereupon  he  enjoined  the  defendants  to  prevent  the  col- 
lection of  an  illegal  tax. 

In  Wiggin  v.  the  Mayor,  &c.  of  New- York,  9  Paige,  16, 
the  chancellor  held  that  he  would  not  restrain  the  collection 
of  an  assessment  for  opening  a  street,  to  correct  an  error  in  the 
estimate  of  damages.  Nor  if  the  proceedings  were  void  on 


80  ABBOTTS'  PKACTICE  KEPOETS. 

Wilson  a.  The  Mayor  of  New- York. 

their  face,  would  he  interfere,  on  the  claim  that  the  proceed- 
ings created  an  apparent  lien  on  the  real  estate  assessed  there- 
for, and  a  cloud  on  the  title. 

And  having,  in  1840,  in  Meserole  v.  Mayor,  &c.  of  Brook- 
lyn, 8  Paige,  R.  198,  enjoined  the  defendants  against  the  col- 
lection of  an  assessment  for  a  street,  on  the  ground  that  the 
opening  was  without  authority, — placing  his  interference,  how- 
ever, under  an  admitted  head  of  equity  jurisdiction,  the  removal 
of  a  cloud  upon  the  defendant's  title  to  real  estate, — the  Court 
of  Errors  reversed  his  decision,  (26  Wend.  132,)  denying  to  the 
Court  of  Chancery  jurisdiction  over  the  proceedings  for  lay- 
ing out  of  streets,  for  the  purpose  of  reviewing  them  or  setting 
them  aside,  and  declaring  that  such  jurisdiction  appertains 
exclusively  to  the  Supreme  Court,  (then  a  court  of  law  only,) 
admitting,  however,  of  two  exceptions,  i.  e.  where  irreparable 
injury  or  multiplicity  of  suits  will  follow,  beyond  the  power  of 
courts  of  law  to  redress. 

In  The  Farmers'  Loan  and  Trust  Company  v.  The  Mayor,  &c. 
7  Sill,  261,  on  appeal  from  the  chancellor,  a  bill  to  restrain 
the  collection  of  a  tax  on  personal  property,  alleged  to  be 
illegal,  was  entertained,  on  the  distinct  ground  that  the  parties 
having  stipulated  to  waive  all  objections  to  the  jurisdiction, 
the  Court  of  Chancery  was  "not  at  liberty  to  decline  the  con- 
sideration of  a  question  which  appropriately  belongs  to  courts 
of  law." 

In  Yan  Doren  v.  The  Mayor,  &c.  9  Paige,  388,  the  chan- 
cellor expresses  his  concurrence  in  the  reversal  of  Meserole  v. 
Brooklyn,  24  Wend,  swpra,  but  asserts  jurisdiction,  where,  by 
reason  of  matters  not  appearing  upon  the  face  of  the  proceed- 
ings, an  assessment  for  a  street  was  illegal ;  but  in  such  case 
only  when  a  cloud  upon  the  title  to  real  estate  was  created  by 
the  assessment,  citing  Simpson  v.  Lord  Howden,  3  Mylne  & 
(7.97. 

In  The  Utica  Manufacturing  Company,  v.  The  Supervisors 
of  Oneida  County,  1  Bcvrb.  Ch.  It.  432,  on  appeal  from  a 
decretal  order  overruling  a  demurrer  to  the  bill,  filed  to  restrain 
the  collection  of  an  illegal  tax,  the  chancellor  affirmed  the 
order ;  but  he  says  expressly,  that  no  such  question  being 
raised  by  defendant's  counsel,  he  has  not  considered  whether 


NEW-YOKK.  31 


Wilson  a.  The  Mayor  of  New- York. 


it  is  a  proper  case  of  equity  cognizance,  or  whether  the  com- 
plainant had  a  perfect  remedy  at  law,  by  mandamus,  to  com- 
pel the  defendants  to  strike  the  name  of  the  complainant  from 
the  assessment  roll. 

In  Livingston  v.  Hollenbeck,  4:  Barb.  R.  10,  the  Superior 
Court  in  Equity  hold  distinctly  on  a  bill  filed  to  restrain 
the  collection  of  a  tax,  that  they  have  no  power  to  interfere, 
and  that  the  plaintiff  has  his  remedy  at  law ;  and  in  Van 
Rensselaer  v.  Kidd,  ib.  17",  the  same  doctrine  is  repeated. 

In  Boreel  v.  The  Mayor,  &c.  2  Sand.  552,  the  Superior 
Court  of  the  city  of  New- York  entertained  a  bill  to  restrain 
the  defendants  from  giving  a  lease  on  a  sale  for  taxes,  and  from 
selling  for  other  taxes  and  assessing  taxes  in  future,  where  the 
property  taxed  was  adjudged  not  liable  to  taxation,  though  the 
bill  was  demurred  to  for  want  of  equity.  The  question  of 
jurisdiction  was  not  discussed,  but  the  question  of  exemption 
from  taxation  only.  The  decision  is  hardly  consistent  with 
that  of  the  Court  of  Errors,  above  referred  to. 

In  The  Sun  Mutual  Insurance  Company  v.  The  Mayor,  &c. 
8  Bar~b.  450,  the  bill  was  filed  to  restrain  the  collection  of  a 
tax  on  personal  property,  for  which  a  warrant  had  been  issued, 
and  a  levy  made,  an  injunction  was  granted  at  special  term, 
but  dissolved,  on  appeal  upon  the  merits ;  but  it  would  seem 
that  no  question  of  jurisdiction  was  intended  to  be  raised — at 
all  events,  the  court  do  not  pass  upon  that  question.  Whether 
it  was  conceded,  or  taken  for  granted  by  the  court,  does  not 
appear. 

And  in  The  Albany  and  Schenectady  Kailroad  Company  v. 
Osborn,  12  Barb.  223,  though  the  court  entertained  the  ques- 
tion of  the  legality  of  the  tax,  it  appears  to  have  been  con- 
sidered and  decided,  because  that  was  agreed  upon  as  the  sole 
question  in  the  case — objection  to  the  jurisdiction  being  thus 
waived. 

So  in  The  Sun  Mutual  Insurance  Company  v.  The  Mayor,  5 
Sand.  10,  the  question  of  the  legality  of  a  tax  on  personal 
estate,  was  considered  in  equity,  after  the  warrant  was  issued 
to  the  collector,  and  decided  on  the  merits ;  but  it  does  not 
appear  that  the  question  of  jurisdiction  was  argued  or  consid- 
ered by  the  court. 


32  ABBOTTS'  PRACTICE  REPORTS. 

Wilson  a.  The  Mayor  of  New-York. 

And  in  Bartlett  v.  The  Mayor,  &c.  2  Sand.  44,  where  an 
injunction  was  applied  for,  on  the  distinct  ground  that  the 
plaintiff  was  not  a  resident  of  this  city,  and  was  illegally  taxed 
here,  the  case  was  considered  upon  the  merits,  and  the  plain- 
tiff was  deemed  a  resident,  within  the  meaning  of  the  act  of 
1850.  (Laws  of  1850,  ch.  92.) 

The  jurisdiction  of  the  court  would  seem  to  have  been  taken 
for  granted.  But  as  the  question  does  not  appear  to  have  been 
raised,  the  case  cannot  be  deemed  an  authority  in  support  of 
the  jurisdiction,  in  opposition  to  the  previous  cases. 

And  in  the  case  of  Bouton  v.  The  City  of  Brooklyn,  7  How. 
Pr.  R.  198,  where  the  Supreme  Court  of  the  Second  District 
were  applied  to,  for  an  injunction,  to  restrain  the  collection  of 
an  alleged  illegal  assessment,  upon  real  estate  for  a  public 
park,  that  court  held  on  demurrer,  that  the  plaintiff  had  a 
remedy  at  law,  and  that  a  court  of  equity  would  not  interfere, 
even  to  remove  a  cloud  upon  the  title  to  the  lands  assessed  in 
such  a  case. 

And  see  also  a  decision,  to  the  like  effect,  in  Thatcher  v. 
Dusenbury,  9  How.  Pr.  E.  32. 

Entertaining  the  views,  which  I  have  stated  above,  and 
believing  that  they  are  in  conformity  with  the  decisions 
heretofore  made  when  the  point  has  been  presented,  I  am 
constrained  to  hold,  that  to  restrain  the  collection  of  a  tax 
upon  personal  estate,  on  the  grounds  alleged  in  the  complaint 
herein,  a  court  of  equity  has  no  jurisdiction. 

Assuming  it  as  conceded,  that  the  question  of  jurisdiction 
was  properly  raised  by  the  demurrers,  (notwithstanding  the 
suggestions  above  intimated,)  the  defendants  may  have  judg- 
ment on  the  demurrers,  with  the  usual  leave  to  the  plaintiff 
to  amend  (if  he  deems  an  amendment  possible)  on  the  usual 
terms.* 

*  Although  this  cause  was  decided  in  July,  1854,  the  opinion  was  not  filed  until 
recently.  The  same  question  has  heen  since  mooted  in  the  Supreme  Court,  in  The 
Chemical  Bank  a.  The  Mayor,  &c.,  (see  post.)  and  in  the  New  York  Superior  Court, 
in  The  New  York  Life  Insurance  Co.  a.  The  Board  of  Supervisors,  lately  decided  at 
general  term.  In  hoth  cases  the  injunction  was  denied. 


NEW-YOKK.  33 


Purple  a.  The  Hudson  River  Railroad  Company. 


PURPLE  a.  THE  HUDSON  RIVER  R.  R.  CO. 

New  York  Superior  Court ;  General  Term,  October,  1854. 
ASSIGNMENT  OF  CAUSE  OF  ACTION. — TOKTS. 

The  rule  of  law  that  a  cause  of  action  founded  on  injuries  to  the  person  is  not  as- 
signable, has  not  been  altered  by  the  Code. 

Demurrer  to  complaint. 

This  action  was  instituted  by  S.  S.  Purple,  assignee  of 
Minerva  Purple.  The  complaint  alleged  that  the  defendants 
contracted  to  carry  Minerva  Purple  from  Greenbush  to  Canal- 
street,  and  deliver  her  there  in  safety ;  that  she  was  violently 
thrown  from  the  car  when  landing,  by  reason  of  its  being 
started  improperly,  whereby  she  was  severely  injured :  and 
that  she  had  assigned  the  cause  of  action  to  the  present  plain- 
tiff. To  this  complaint  the  defendants  demurred  on  the 
ground  that  the  cause  was  not  assignable.  The  demurrer  was 
sustained  at  special  term,  and  the  plaintiff  appealed  to  the 
general  term. 

Geo.  Betts,  for  plaintiff. 

W.  Fullerton,  for  defendants. 

DUEK,  J. — We  are  clearly  of  opinion  that  the  decision  at 
special  term  is  correct. 

It  is  true  in  all  cases,  as  the  law  stood  before  the  Code,  that 
where  an  action  was  brought  against  a  common  carrier,  or 
against  a  person  engaged  to  transport  another  for  hire,  the 
party  had  his  election  whether  to  bring  his  action  for  assump- 
sit  founded  upon  a  breach  of  contract  or  an  action  of  tort ; 
but  whatever  may  have  been  the  nature  of  the  action  where 
it  was  brought  to  recover  for  injuries  to  the  person — an  injury 
resulting  from  the  carelessness  or  negligence  of  the  party  sued 
— we  think  that  tort  was  substantially  the  true  cause  of  action, 

and  therefore  it  was  not  assignable.    It  seems  to  have  been 

3 


34  ABBOTTS'  PRACTICE  REPORTS. 

Mabaney  a.  Penman. 

understood  by  many  members  of  the  bar  that  the  Code  autho- 
rizes an  assignee  to  maintain  an  action  in  his  own  name,  and 
that  in  all  cases  where  right  of  action  exists  in  a  party,  that 
right  may  be  assigned.  The  law  in  that  respect  has  not  been 
altered.  An  assignee  where  an  assignment  is  valid  according 
to  the  rules  of  law  as  they  formerly  existed,  may  maintain  an 
action  in  his  own  name,  but  when  a  cause  of  action  is  a  simple 
tort,  and  for  a  special  injury  to  the  person,  it  is  not  more 
assignable  under  the  Code  than  it  was  under  the  laws  that 
formerly  prevailed. 
Judgment,  therefore,  must  be  affirmed,  with  costs. 


MAHANEY  a.  PENMAN. 
[New  York  Superior  Court :  Special  Term,  October ',  1854.] 

JURISDICTION  OF  THE  SUPERIOR  COURT. — JOINT  LIABILITY  UPON 

CONTRACT. 

A  defendant  cannot  appear  in  the  New  York  Superior  Court,  under  protest  to  the 
jurisdiction,  based  on  a  purely  personal  objection. 

The  proceedings  authorized  by  the  Code  to  be  taken  in  suits  brought  against  defend- 
ants jointly  liable  upon  contract,  may  be  taken  in  a  suit  brought  upon  a  judg- 
ment rendered  against  defendants,  jointly,  upon  a  contract  on  which  they  were 
jointly  liable. 

Motion  for  a  new  trial. 

The  action  was  brought  by  Mahaney  against  three  defend- 
ants, upon  a  judgment  rendered  in  his  favor  against  them  in 
the  State  of  Virginia.  The  grounds  of  the  motion  sufficiently 
appear  in  the  opinion  of  the  court. 

J.  Livingston,  for  plaintiff. 
B.  Galbraith,  for  defendant. 

HOFFMAN,  J.,  (with  concurrence  of  OAKLEY,  C.  J.  and  DUER, 
J.) — On  the  22d  of  April,  1850,  the  plaintiff  recovered  a  judg- 
ment against  the  defendants,  in  a  court,  described  as  the 


NEW-YORK.  35 


Mahaney  a.  Penman. 


•"  Circuit  Superior  Court  of  Law  and  Chancery,  for  Frederick 
-County,  in  the  State  of  Virginia,"  for  $800,  with  legal  interest, 
until  paid,  and  his  costs. 

The  plaintiff  avers  in  his  complaint,  that  such  court  was  a 
Court  of  Kecord  of  the  State  of  Virginia  ;  that  he  is  the  owner 
of  the  judgment,  and  that  the  defendant  is  indebted  to  him 
the  sum  of  $800,  with  interest,  for  which  he  prays  judgment. 

The  defendant,  Daniel  Penman,  by  answer,  reserves  the 
right  to  object  to  the  jurisdiction ;  and,  that  the  plaintiff  shows 
no  cause  of  action.  He  then,  1st,  denies  the  recovery  of  the 
judgment  in  the  court  as  alleged.  2d.  He  says  that  there  was 
no  such  court  known  at  the  alleged  time  as  the  court  described. 
3d.  That  such  described  court  was  not  a  court  of  record.  4th. 
That  there  was  not,  at  the  time  alleged,  any  such  judgment 
of  such  court  valid,  in  point  of  law,  against  the  defendants,  at 
the  suit  of  the  plaintiff.  5th.  That  the  plaintiff  was  not  the 
owner  of  such  judgment  in  the  complaint  mentioned,  nor  does 
he  sue  as  executor,  administrator  or  trustee  of  an  express  trust, 
or  by  authority  of  any  statute,  enabling  him  to  sue  without 
joining  the  person  for  whose  benefit  he  sues.  6th.  That  after 
the  accruing  of  the  cause  of  action,  and  before  commencing 
this  action,  the  plaintiff  issued  a  writ  of  fi.  fa.,  under  the  seal 
of  the  said  "  Circuit  Superior  Court  of  Law  and  Chancery,  for 
Frederick  County,  in  the  State  of  Virginia,"  directed  to  the 
sheriff  of  such  county,  who  levied  under  the  same  upon  goods 
and  chattels  of  the  defendants,  and  raised  money  enough  to 
satisfy  the  said  judgment.  7th.  That  at  the  commencement 
of  this  action,  there  was  not  the  sum  of  $800,  or  any  sum  due 
to  the  plaintiff  on  such  judgment. 

The  plaintiff,  in  his  reply,  denies  the  issuing  of  an  execution ; 
avers  that  he  is  the  owner  of  the  judgment,  and  says,  that  the 
whole  of  the  amount  is  due  and  owing  to  him. 

The  plaintiff  produced  at  the  trial  a  judgment  record  of  the 
county  court  of  Frederick,  from  which  it  appears  that  the 
present  defendants  were  returned  in  custody,  and  acknow- 
ledged the  action  against  them  for  $2,025  68  ;  that  the  present 
plaintiff  was  plaintiff  in  such  action  ;  that  judgment  was  ren- 
dered for  that  sum,  and  execution  issued  to  recover  it,  of 


36  ABBOTTS'  PRACTICE  REPORTS. 

Mahaney  a.  Penman. 

which  there  was  no  return.    The  recovery  of  the  judgment 
appears  to  be  the  22d  of  April,  1850. 

The  defendants  offered  in  evidence  a  deed  of  trust,  dated 
the  6th  of  April,  1850,  executed  by  all  the  defendants,  for  the 
benefit  of  all  their  creditors,  and  offered  to  show  that  the  judg- 
ment was  confessed  after  the  execution  of  such  deed  and  dis- 
solution of  the  firm. 

The  judge  rejected  the  evidence. 

The  defendants  also  offered  a  copy  of  an  opinion  of  the 
presiding  judge  of  the  circuit  court  in  the  county  of  Frederick, 
wherein  the  present  plaintiff  and  the  present  defendants  were 
parties,  in  which  the  judgment  confessed  was  declared  void. 
This  evidence  was  also  rejected. 

A  case  was  made  with  liberty  to  turn  the  same  into  a  bill 
of  exceptions. 

It  does  not  appear  from  the  case  whether  all  the  defendants 
were  served  in  this  action.  There  is  only  an  answer  of  one  of 
them  (Daniel  Penman)  served,  although  the  reply  is  to  the 
answer  of  Penman  and  Thompson. 

The  cases  cited  in  the  Court  of  Appeals,  (Frees  v.  Ford,  2 
Selden,  176  ;  and  Clason  v.  Corley,  Selden's  Notes,  31,)  if  ap- 
parently inconsistent  in  some  of  the  language  used,  are  recon- 
cilable upon  the  facts.  The  latter  case  came  from  this  court, 
to  which  it  was  sent  by  the  Supreme  Court,  and  is  reported  in 
3  Sand.  454.  At  page  456  the  effect  of  the  amendment 
showing  the  residence  of  the  defendant,  so  as  to  exhibit  juris- 
diction after  the  original  bill  had  been  taken  as  confessed,  is 
discussed  by  the  court ;  and  the  ground  there  taken  is  affirmed 
in  the  Court  of  Appeals. 

Hie  possession  of  jurisdiction  did  appear  on  the  record. 

The  position  in  Frees  v.  Ford  is  therefore  unaffected,  and 
the  jurisdiction  of  this  court  must  appear  on  the  record.  It 
does  so  appear  when  it  appears  that  one  of  several  parties 
jointly  liable  on  contract  has  been  personally  served  with  pro- 
cess, or  resides  within  the  city  of  New  York,  or  where  all  the 
defendants,  without  regard  to  the  nature  of  the  action,  reside, 
or  are  served  within  the  city. 

Not  one  of  these  grounds  of  jurisdiction  expressly  appears 
on  this  record.  Nothing  tending  to  prove  jurisdiction  is  shown, 


NEW-YOKE:.  37 


Mahaney  a.  Penman. 


unless  the  voluntary  appearance  and  answer  of  Daniel  Penman, 
claiming,  at  the  same  time,  the  benefit  of  the  objection,  is 
sufficient. 

There  are  then  two  questions — First.  Is  such  an  appearance 
and  answer  an  implication  of  his  residence  or  of  his  being  per- 
sonally served  within  the  city  or  of  a  consent  to  jurisdiction  ? 
Next.  Is  he  one  of  several  defendants  jointly  liable  on  con- 
tract? 

I.  In  Burckle  v.  Eckhardt,  3  Comst.,  132,  the  Court  of 
Appeals  held  that  where  a  bill  was  filed  against  persons  not 
residing  within  the  circuit  of  a  vice  chancellor,  and  the  resi- 
dence elsewhere  appeared  on  the  face  of  the  bill,  his  voluntary 
appearance  by  a  solicitor  did  not  give  jurisdiction,  and  his 
allowing  the  bill  to  be  taken  as  confessed,  did  not  bind  him. 
"  The  residence  within  the  circuit  was  a  jurisdictional  fact 
which  must  exist  before  the  court  can  act  at  all,  either  by 
issuing  processes  or  accepting  the  appearance  of  a  defendant. 
It  is  necessary  to  give  jurisdiction  of  the  cause,  not  of  the  per- 
son. In  such  case  there  can  be  no  waiver.  The  want  of 
jurisdiction  appears  on  the  record.  (Per  Gardiner,  Justice.) 

Upon  this  point,  the  case  of  Bucknell  v.  Field  and  another, 
8  Paige,  442,  deserves  much  attention.  A  judgment  had  been 
recovered  by  the  defendants  against  the  complainant  and  one 
Stevens,  in  a  court  in  the  State  of  Massachusetts.  An  action 
of  debt  on  judgment  was  commenced  in  the  Supreme  Court 
of  this  State  by  the  defendants  against  the  plaintiff.  The  bill 
was  to  restrain  the  prosecution  of  such  action  upon  certain 
alleged  equitable  grounds.  It  was  filed  before  the  vice  chan- 
cellor of  the  first  circuit,  neither  of  the  defendants  residing  in 
such  circuit,  but  one  in  Westchester  county  and  the  other  out 
of  the  State.  The  chancellor  held  that  the  subject  matter 
having  no  locality,  the  question  depended  upon  the  fact 
whether  the  suit  instituted  in  the  Supreme  Court  was  a  cause 
or  matter  of  action  arising  within  the  first  circuit.  If  a  bill 
could  have  been  sustained  before  such  suit  was  commenced, 
it  was  evident  that  the  vice  chancellor  had  no  jurisdiction.  He 
inclined  to  the  opinion  that  he  possessed  it  on  the  ground  of 
such  suit  in  the  Supreme  Court.  (See  9  Paige,  151.) 

The  case  of  Burckle  v,  Eckhardt  was  decided  in  December, 


38  ABBOTTS'  PRACTICE  REPORTS. 

Mahaney  a.  Penman. 

1849,  and  in  April,  1851,  the  139th  section  of  the  Code  was 
amended  by  adding  to  it  the  following  clause  :  "  A  voluntary 
appearance  of  a  defendant  is  equivalent  to  personal  service  of 
a  summons  upon  him." 

In  Granger  v.  Swartz,  (11  Legal  Obs.  346,)  in  this  court,  the 
learned  justice  says,  that  the  voluntary  appearance  of  defend- 
ants under  this  section  has  the  same  effect  as  a  service  of  a 
summons  on  them  upon  the  day  of  appearance  would  have 
had.  The  clause  referred  to  takes  away,  then,  the  right  to 
appear  with  a  reservation  of  an  objection  to  jurisdiction  when 
such  objection  is  purely  personal.  The  defendant  here  cannot' 
appear  with  protest,  and  now  say  that  the  record  does  not 
show  that  he  was  a  resident  or  was  served  personally. 

II.  Another  question  then  remains — Is  he  jointly  liable 
with  the  other  defendants  on  contract  ? 

The  case  of  Bealey  v.  Palmer,  (1  Jlill,  482),  is  referred  to. 
Proceedings  were  taken  by  attachment  under  the  absent  debtor's 
act.  The  attachment  was  against  the  property  of  three  persons 
who  had  been  originally  indebted  on  a  joint  and  several  pro- 
missory note,  on  which  they  had  been  sued  in  Indiana.  One 
of  them  only  was  arrested,  and  judgment  given  against  him 
alone.  His  property  was  attached  in  this  state. 

It  was  held  that  the  remedy  did  not  extend  to  attachment 
on  a  judgment  in  another  state ;  the  third  section  (1  J%ev.  Stats. 
765,  2d  ed.)  extending  only  to  judgments  obtained  here.  And 
next  that  the  party  could  not  go  behind  the  judgment  and 
put  the  case  under  the  final  section  which  covered  a  debtor  on 
contract.  The  judgment  extinguished  the  simple  contract 
debt,  as  to  the  defendant  arrested. 

But  the  arrest  in  that  case  was  only  of  one  of  the  parties 
jointly  liable,  and  the  judgment  was  against  him  alone.  As  to 
him  the  joint  contract  was  gone  and  a  separate  liability  was 
established  upon  the  judgment.  Here  the  original  joint 
liability  upon  contract  is  continued  in  a  joint  liability  on  judg- 
ment. And  I  think  that  under  a  fair  construction  of  the  Code, 
this  may  be  treated  as  still  a  joint  liability  on  contract. 

As  to  the  other  points  raised  on  the  bill  of  exceptions,  I  do- 
not  think  a  doubt  can  be  entertained  that  the  ruling  of  the 
judge  was  correct. 

Motion  for  a  new  trial  denied. 


NEW-YORK.  39 


St.  John  a.  Griffith. 


ST.  JOHN  a.  GRIFFITH. 

/Supreme  Court,  first  District/  Special  Term,  November,  1854. 
PLEADING. — ACT  OF  AGENT. 

Under  the  Code  the  act  of  an  agent  should  not  be  pleaded  as  the  act  of  his  principal. 
Of  the  liberality  in  the  construction  of  pleadings  required  by  the  Code. 

.     Motion  to  strike  out  portions  of  a  complaint. 

The  complaint  stated  an  agreement  entered  into  by  Ancel 
St.  John,  brother  of  the  plaintiff,  and  claiming  to  act  as  hia 
agent,  with  Griffith  and  Brown  the  defendants ;  by  which  St, 
John  sold  to  defendants  a  lease  and  fixtures  of  a  hotel,  the 
defendants  agreeing  to  give  a  chattel  mortgage  as  collateral 
security  for  the  payment  of  the  purchase-money,  part  of  which 
was  to  remain  unpaid.  It  also  alleged  that  the  defendants 
with  a  view  of  defrauding  him,  had  since  made  two  notes 
upon  which  the  holders  had  entered  judgment  and  issued 
execution.  It  prayed  a  specific  performance  of  the  agreement 
to  give  a  chattel  mortgage  and  a  stay  of  proceedings  of  the 
alleged  fictitious  executions  issued  against  the  defendants. 

The  defendant  moved  to  strike  out  certain  portions  of  the 
complaint ;  those  alleging  that  Ancel  St.  John  entered  into 
the  agreement  of  sale  as  agent  of  his  brother,  and  also  those 
relating  to  the  fraud  charged  upon  the  defendants ;  and  also 
that  the  signatures  to  the  alleged  contract  be  annexed  to  the 
copy  given. 

Mr.  Sanxay,  for  the  motion. 
,  opposed. 

KOOSEVELT,  J. — This  is  a  bill  in  equity  to  compel  the  speci- 
fic performance  of  an  agreement  to  give  a  chattel  mortgage. 
The  plaintiff  alleges  that  instead  of  giving  the  mortgage  aa 
promised,  the  defendants  Griffith  and  Brown  had  confessed  a 
fraudulent  judgment  in  favor  of  Moody  and  Ketch  um,  and 
that  by  means  of  an  execution  on  the  judgment,  G.  and  B., 


40  ABBOTTS'  PEACTICE  KEPOKTS. 

St.  John  a.  Griffith. 

M.  and  3L  were  endeavoring  to  dispose  of  the  property,  and 
thus  defeat  the  plaintiff's  rights. 

The  defendants  move  to  strike  out  several  parts  of  the  com- 
plaint as  irrelevant  and  redundant. 

I.  It  is  contended  first,  that  it  is  bad  pleading  to  aver  that 
an  agent  did  the  act  instead  of  averring  that  it  was  done  by  his 
principal.     The  Code  requires  facts  to  be  stated,  not  fiction ; 
"  the  facts  of  the  case,"  and  not  the  mere  legal  conclusions. 
Such  a  statement  therefore  as  that  adopted  by  the  plaintiff  is 
not  only  admissible  but  necessary.     At  the  same  time  I  see  no 
objection  to  the  plaintiff's  stating  in  addition  to  the  fact  what 
he  considers  to  be  its  legal  effect.     Such  a  statement  may  or 
may  not  be  an  "  unnecessary  repetition"  according  to  circum- 
stances. 

II.  Next,   as  to  the  allegations  of  fraud.     These  are  the 
necessary  bases  for  relief  against  the  judgment  and  execu- 
tion devised  by  the  defendants  to  defeat  the  creditors.     The 
plaintiff  perhaps  has  rung  the  changes  on  them  rather  too  fre- 
quently.    No  particular  injury  however,  it  seems  to  me  can 
result  from  the  few  additional  words.     The  complaint,  as  a 
pleading,  compared  with  a  majority  of  those  which  have  come 
under  the  eye  of  the  court,  is  remarkably  concise.     Although 
full,  it  is  not  overflowing — or  if  so  at  all  but  very  slightly — not 
more  than  what  the  court  may  properly  overlook.     The  Code 
indeed  upon  this  point  is  imperative,  making  it  the  positive 
duty  of  the  court  to  discard  all  nice  objections,  and  to  construe 
pleadings  "  liberally  with  a  view  to  substantial  justice  between 
the  parties." 

This  class  of  motions  I  may  add  is  not  to  be  encouraged. 
They  involve  generally  a  very  great,  and  in  most  instances, 
a  very  fruitless  consumption  of  time,  to  the  prejudice  of 
matters  of  substance  and  the  delay  of  other  suitors.  Tech- 
nical obstructions  are  not  in  harmony  with  the  spirit  of  the 
age,  either  in  the  Old  "World  or  the  New.  Courts  of  justice 
now-a-days  are  expected  to  try  cases  and  not  pleadings.  And 
provided  the  parties  are  reasonably  notified  in  advance  of 
what  they  are  expected  to  meet  on  the  trial,  it  is  all  that 
should  be  required  of  their  adversaries,  and  all  that  is  of  any 
use  in  written  preliminary  statements.  A  good  letter  and 


NEW-YOKE. 


LefTerts  a.  Snediker. 


good  answer,  were  there  no  lawyers,  would  be  the  natural,  as 
they  are,  in  most  instances,  the  best  forms  of  pleading. 

The  defendant's  motion,  except  so  far  as  it  calls  for  the  sig- 
natures of  the  alleged  contract  annexed  to  the  complaint,  must 
be  denied. 


LEFFERTS  a.  SNEDIKER. 
Su/preme  Court:  First  District,  General  Term,  Nov.  1854. 

"HAM  AND  FRIVOLOUS  ANSWEKS,  DISTINGUISHED. — THE 
EEMEDIES. 

A  sham  answer  is  upon  its  face  good,  but  it  sets  up  new  matter  which  is  false. 

A  frivolous  answer  controverts  no  material  allegation  in  the  complaint,  and  pre- 
sents no  tenable  defence. 

The  remedy  for  a  sham  answer,  is  a  motion  to  strike  it  out. 

The  remedy  for  a  frivolous  one,  is  an  application  for  judgment,  upon  Jive  days 
notice. 

Motion  to  strike  out  an  answer. 

This  action  was  brought  upon  a  promissory  note.  The 
answer  denied  information  sufficient  to  form  a  belief  whether 
plaintiffs  were  the  lawful  owners  and  holders  of  the  note,  or 
whether  the  defendant  was  indebted  to  the  plaintiffs,  as  set 
forth  in  the  complaint.  The  plaintiffs  obtained  an  order  to 
show  cause,  returnable  in  two  days,  why  the  answer  should  not 
be  stricken  out  as  sham,  frivolous  and  irrelevant,  and  the 
plaintiffs  have  judgment.  Upon  the  hearing  at  special  term 
it  was  ordered  that  the  answer  be  stricken  out  as  "  sham  and 
frivolous."  The  defendant  appealed. 

C.  P.  EirHand,  for  plaintiffs. 

J.  E.  Burrill,  jr.,  for  defendant. — The  answer  was  not 
stricken  out  as  irrelevant,  but  as  "sham  and  frivolous." 
£Tow  it  was  not  sham.  (Caswell  v.  Bushnell,  14  Barb.  S. 
C.  R.  393.)  And  conceding  that  it  was  frivolous,  the  court 
had  no  right  to  strike  it  out,  but  should  have  proceeded 
under  §  247  of  the  Code,  which  allows  a  party  prejudiced 


42  ABBOTTS'  PEACTICE  EEPOETS. 

Lefferts  a.  Snediker. 

by  a  frivolous  pleading,  to  apply,  on  a  notice  of  five  days, 
for  judgment.  A  defendant  has  the  right  to  have  his  answer 
remain  upon  the  record,  in  order  to  procure  a  review  of  the 
decision  of  the  court.  And  the  only  mode  of  getting  over  a 
frivolous  answer,  is  to  apply  for  judgment,  under  §  247.  (Dar- 
row  v.  Miller,  3  Code  R.  241  Hill  v.  Smith,  1  Duer,  650.) 

CLEEKE,  J. — The  Code  establishes  a  very  clear  and  decided 
distinction  between  sham  and  frivolous  answers,  and  provides 
a  totally  different  method  of  dealing  with  them.  A  sham 
answer  is  upon  its  face  good,  and  sets  up  new  matter,  which  is 
false ;  a  frivolous  answer  controverts  no  material  allegation  in 
the  complaint,  and  presents  no  tenable  defence. 

In  this  case  the  answer  is  not  false,  or,  rather,  it  cannot  be 
treated  as  false,  for  it  sets  up  no  new  matter,  and  if  it  could  be 
treated  as  false,  the  plaintiff  could  not  apply  for  judgment,  but 
to  have  it  struck  out,  under  section  152  of  the  Code,  upon  such 
terms  as  the  court  may  deem  proper.  If  this  answer  can  be 
considered  frivolous,  the  application  should  be  under  section 
247  of  the  Code,  on  a  notice  of  five  days,  for  judgment.  The 
motion  was  on  a  notice  of  two  days  to  have  the  answer  struck 
out,  as  sham,  frivolous  and  irrelevant,  and  for  judgment.  If 
the  notice  was  on  five  days,  and  if  the  judge  decided  the 
answer  to  be  frivolous,  he  might  have  given  judgment  under 
section  247,  disregarding  the  words  "  sham"  and  "  irrelevant" 
in  the  notice.  The  order  granted  merely  strikes  out  the  answer 
as  sham  and  frivolous,  and  gives  no  judgment.  Under  the 
notice,  the  application  ought  not  to  have  been  granted  in  any 
shape.  The  plaintiff's  only  remedy  is  under  section  247.  Order 
reversed. 

ROOSEVELT,  J.,  dissented. 


NEW-YORK.  43 


Voorhies  a.  Baxter. 


VOORHIES  a.  BAXTER. 

Supreme  Court,  First  District;  General  Term,  November,  1854. 
MISJOINDER  OF  DEFENDANTS. — EXECUTORS  OF  DECEASED  PARTNER. 

The  executors  of  a  deceased  member  of  a  firm  cannot  be  sued  for  a  debt  due  from 
the  partnership,  unless  insolvency  of  the  surviving  partners  or  some  other  ground 
of  special  relief  against  them  be  shown. 

This  rule,  which  was  formerly  well  settled,  has  not  been  changed  by  the  Code. 

Demurrer  to  complaint. 

This  suit  was  brought  by  William  and  Peter  Voorhies,  upon 
two  notes  made  by  the  firm  of  Baxter,  Brady,  Lent  &  Co.,  one 
of  whom  was  H.  W.  Childs,  since  deceased.  The  complaint 
joined  the  executors  of  Childs,  with  the  surviving  partners  of 
the  firm,  but  stated  no  special  grounds  on  which  relief  was 
claimed  against  the  executors. 

The  executors  demurred  to  the  complaint,  on  the  ground 
that  it  showed  no  cause  of  action  against  them.  The  demurrer 
was  sustained  at  special  term,  and  the  complaint  dismissed  as 
to  the  executors  of  Childs.  From  this  decision  the  plaintiffs 
appealed. 

It.  M.  Harrington,  for  plaintiff. 
W.  S.  Rowland,  for  defendant. 

MITCHELL,  J. — Childs  was  one  of  a  firm  of  six  persons  who 
made  in  the  firm  name,  a  note,  now  held  by  the  plaintiffs  ;  he 
died,  and  the  plaintiffs  sued  the  five  surviving  partners,  and 
with  them  the  executors  of  Childs,  setting  forth  no  circum- 
stances to  raise  an  equity  against  the  executors.  The  execu- 
tors demurred,  on  the  ground  that  the  plaintiff  showed  no 
cause  of  action  against  them. 

In  Lawrence  v.  The  Trustees  of  the  Leake  &  Watts  Orphan 
House,  2  Den.  577,  the  Court  for  the  Correction  of  Errors, 
affirmed  unanimously  the  decision  of  the  chancellor  and  of  the 
vice-chancellor,  holding,  that  (although  the  rule  may  be  differ- 


44  ABBOTTS'  PRACTICE  REPORTS. 

Voorhies  a.  Baxter. 

ent  in  recent  English  cases,)  here,  "  a  creditor  of  a  co-partner- 
ship firm,  on  the  death  of  one  of  its  members,  cannot  sustain 
a  bill  against  the  representatives  of  the  deceased  and  the  sur- 
viving members,  or  against  such  representatives  alone,  without 
averring  and  proving  that  such  surviving  partners  are  insolvent ;" 
that  "  as  the  remedy  at  law  survives,  the  creditor  is  bound  to 
resort  to  his  legal  remedy  against  the  surviving  debtors,  unless 
he  can  show  a  necessity  for  coming  into  a  court  of  equity  for 
relief  against  the  estate  of  the  deceased  debtor :"  that  "  such  a 
debt  is  joint,  and  not  joint  and  several."  (P.  588  and  '9.)  The 
decision  was  not  founded  on  the  difference  of  jurisdiction 
between  courts  of  law  and  courts  of  equity,  for  it  denied  the 
right  to  come  even  into  equity,  unless  insolvency  of  the  sur- 
vivors, or  some  other  ground  of  equitable  relief  was  established ; 
it  therefore  held  that  the  creditor  had  no  right  of  action,  either 
at  law  or  equity,  against  the  executors  of  the  deceased,  until 
he  showed  insolvency  in  the  survivors.  The  rule  is  just  also; 
the  surviving  partners  take  all  the  assets  of  the  firm,  including 
even  the  share  to  which  the  deceased  was  entitled,  and  retain 
it  and  apply  it  to  the  payment  of  the  partnership  debts.  They 
alone  and  not  the  executors  of  the  deceased  have  the  fund  out 
of  which  the  debt  is  primarily  to  be  paid.  The  executors  have 
only  the  individual  property  of  the  deceased,  and  that  should 
be  applied  first  to  pay  his  individual  debts. 

In  Kiart  v.  Townsend,  (6  How.  Pr.  R.  460,)  the  plaintiff 
made  Townsend  the  surviving  partner,  and  the  executor  of 
Clapp,  the  deceased  partner,  defendants ;  and  it  seems  Towii- 
send  alone  demurred  for  a  misjoinder  of  parties.  The  demur- 
rer was  overruled,  but  with  a  suggestion  that  it  would  be  ne- 
cessary for  the  plaintiff  to  show  what  kind  of  relief  he  sought 
against  the  executors.  The  demurrer  was  properly  overruled, 
for  the  Code,  while  it  allows  a  demurrer  for  defect  of  parties, 
does  not  allow  it  for  too  many  parties ;  and  that  was  the  mean- 
ing of  the  demurrer  in  that  case.  In  this,  the  demurrer  is  not 
by  the  surviving  partners,  who  have  no  cause  of  complaint, 
but  by  the  executors,  and  on  the  ground  that  no  cause  of 
action  is  shown  as  against  them.  The  learned  judge  says,  in 
that  case,  that  if  the  action  is  brought  to  enforce  the  liability, 
both  of  the  partnership  property  and  of  the  partners  individu- 


NEW-YOKE.  45 


Voorhies  a.  Baxter. 


ally,  then  the  surviving  partners  and  the  representatives  of  the 
deceased  are  necessary  parties.  This  is  so,  if  a  case  be  made, 
giving  the  creditor  a  right  as  against  the  representatives  of  the 
deceased,  and  probably  was  intended  to  be  confined  to  such 
cases.  The  Code  was  not  intended  to  give  a  remedy  under 
circumstances  where  there  was  no  right  either  at  law  or  in 
equity  before. 

The  plaintiff  relied  on  §  118  and  §  122  of  the  Code.  Section 
118  is,  that  "  any  person  may  be  made  a  defendant,  who  has 
or  claims  an  interest  in  the  controversy  adverse  to  the  plain- 
tiffs, or  who  is  a  necessary  party  to  a  complete  determination  or 
settlement  of  the  question."  This  section  was  borrowed  from 
the  chancery  practice,  and  was  intended  to  preserve  the  right 
and  duty  of  a  plaintiff,  to  make  all  persons  parties  directly  inter- 
ested in  the  question  or  controversy  stated  in  the  complaint. 
In  this  case  the  complaint  does  not  state  any  cause  of  action  at 
law  or  in  equity  against  the  executors,  but  one  against  the  other 
defendants  only  :  the  executors  have  and  claim  no  interest  in 
this  controversy,  and  they  are  not  necessary  parties  to  a  com- 
plete determination  or  settlement  of  this  question.  The  ques- 
tion and  the  controversy  only  is,  whether  the  firm  made  the 
note,  not  whether  the  estate  of  the  deceased  is  to  pay  it.  The 
law  is,  that  his  estate  is  not  liable  to  be  sued  for  it,  if  the  sur- 
vivors are  solvent  and  able  to  pay  it. 

A  different  decision  would  be  exceedingly  prejudicial  to 
creditors.  The  executors  could  object  that  no  judgment  should 
be  entered  against  the  estate  until  the  insolvency  of  the  firm 
should  be  ascertained,  and  could  plead  that  it  was  solvent  and 
be  able  to  pay  its  debts,  and  judgment  would  then  be  delayed 
until  that  question  should  be  settled.  By  leaving  the  law  as  it 
has  already  stood  in  this  State,  the  creditor  has  first  his  prompt 
remedy  on  the  note  against  the  surviving  partners,  and  then,  if 
they  are  insolvent,  his  equitable  relief  against  the  executors. 

The  judgment  should  be  affirmed  with  costs. 


46  ABBOTTS'  PRACTICE  KEPOKTS. 

Seaboard  and  Roanoake  Railroad  Company  a.  Ward. 

SEABOARD  AND  ROANOAKE  R.  R.  CO.  a.  WARD. 

Supreme  Cowrt,  First  District;  General  Term,  November,  1854. 

RIGHT  TO  DISCONTINUE. — COUNTER-CLAIM. 

Under  the  former  practice  the  plaintiff  had  an  absolute  right  to  discontinue  on  pay- 
ment of  costs  at  any  time  before  judgment  or  decree,  or  the  submission  of  the 
cause  to  the  jury. 

This  right  has  not  been  abrogated  by  the  Code. 

The  fact  that  defendant  has  answered,  setting  up  a  counter-claim,  does  not  preclude 
the  plaintiff  from  discontinuing  before  reply  or  demurrer  or  expiration  of  the  time 
to  reply. 

Motion  to  set  aside  order  of  discontinuance. 

The  defendant  having  answered  the  complaint  in  this  cause 
setting  up  a  counter-claim,  the  plaintiff  entered  an  ex-parte 
order  of  discontinuance ;  which  the  defendant  moved  at  spe- 
cial term  to  set  aside.  The  motion  was  denied  pro  forma  for 
the  purpose  of  presenting  the  question  involved,  to  the  general 
term  in  the  first  instance. 

Wm.  C.  Noyes,  for  plaintiffs. 

P.  T.  Wooodbury  and  C.  P.  Kirklancl,  for  defendant.  The 
counter-claim  of  the  defendant  under  the  Code  is  in  fact  a 
cross-action  by  defendant  against  plaintiff,  and  possesses 
every  feature  and  every  right  of  an  original  action.  It  is 
pleaded  exactly  like  matter  in  a  complaint,  and  issue  is  joined 
upon  it  in  precisely  the  same  way.  The  defendant  is  an  actor 
in  bringing  the  counter-claim  to  trial.  And  if  the  counter- 
claim be  in  fact  a  cross-action,  possessing  every  feature  and 
every  right  of  an  original  action,  then  the  plaintiff  cannot  of 
his  own  motion  discontinue  what  is  in  fact  the  defendant's  suit 
against  him.  The  counter-claim  is  analogous  to  the  cross-bill 
in  equity ;  and  the  dismission  of  the  original  suit  in  equity 
never  worked  an  abatement  or  dismission  as  to  the  cross-bill. 
(2  Sorb.  Ch.  Pr.  129.  Wickliffe  v.  Clay,  1  Dana,  589.  8. 
C.  2,  Ob.  68.) 


NEW-YORK.  47 


Seaboard  and  Roanoake  Railroad  Company  a.  Ward. 


MITCHELL,  J. — The  plaintiffs,  a  foreign  corporation,  com- 
menced this  action  against  the  defendant,  for  moneys  received 
as  their  agent.  He  set  up  a  counter-claim  arising  out  of  trans- 
actions prior  to  the  agency,  and  for  which,  if  he  has  any  claim, 
he  can  still  commence  an  action.  Before  the  time  for  reply- 
ing, the  plaintiffs  entered  an  ex-parte  order,  dismissing  the 
action  on  payment  of  costs.  The  defendant  moved  to  vacate 
that  order,  and  the  judge  at  special  term  denied  the  motion. 
The  defendants  appeal. 

The  absolute  right  of  a  plaintiff  to  discontinue  his  action  on 
payment  of  costs,  at  any  time  before  judgment  or  decree,  or 
before  the  case  was  submitted  to  a  jury,  has  been  the  law  both 
of  this  country  and  of  England,  from  the  earliest  period  to  this 
day,  unless  the  Code  has  taken  away  that  right.  It  was 
allowed  in  chancery,  when  the  cause  was  called  on  for  hearing, 
although  the  defendants  were  ready  to  argue  the  cause  on  its 
merits,  and  strongly  opposed  the  dismissal.  Curtiss  v.  Loyd,  4: 
Mylne  &  JT.,  194. 

Chancellor  Walworth  said,  (Cummins  v.  Bennett,  8  Paige, 
81,)  that  it  is  a  matter  of  course  to  permit  a  complainant  to  dis- 
miss his  bill  at  any  time  before  the  interlocutory  or  final 
decree  has  been  made  in  the  cause,  upon  payment  of  costs.  It 
was  conceded  by  the  counsel  on  both  sides,  that  this  right  con- 
tinued even  if  a  cross-bill  were  filed  ;  but  that  then  it  did  not 
carry  the  cross-bill  with  it.  But  the  cross-bill  was  the  bill  of 
the  defendant ;  it  remained  in  court  until  he  voluntarily  dis- 
missed it,  or  it  was  dismissed  by  his  default,  or  disposed  of  by 
the  judgment  of  the  court.  It  was  also  conceded  that  the 
right  existed  in  replevin,  where  the  defendant  is  an  actor  and 
may  notice  the  cause  as  well  as  the  plaintiff;  and  continued  in 
actions  of  contract  after  the  law  allowed  a  set  off  to  the 
defendant,  and  his  right  to  recover  from  the  plaintiff  any 
excess  of  the  set-off  beyond  the  plaintiff's  claim.  In  replevin 
the  effect  of  the  discontinuance  was,  a  judgment  for  the  return  of 
the  property  replevied,  but  that  was  only  to  carry  out  a  neces- 
sary effect  of  the  abandonment  of  the  suit,  viz. :  that  property 
acquired  by  the  commencement  of  the  suit  should  be  returned 
when  the  suit  was  voluntarily  abandoned,  and  this  abandon- 
ment showed  that  the  plaintiff  had  no  right  to  the  property,  at 


48  ABBOTTS'  PEACTICE  REPORTS. 

Seaboard  and  Roanoake  Railroad  Company  a.  Ward. 

least  in  that  action ;  it  could  be  obtained  only  by  the  institu- 
tion of  the  suit,  and  the  foundation  for  retaining  it  failed  when 
the  suit  failed. 

Doubt  is  expressed,  in  Wilson  v.  Wheeler  (6  Sow.  Pr.  It. 
51,  52),  whether  on  a  discontinuance  by  the  plaintiff,  in  replevin, 
it  would  be  part  of  the  judgment  that  the  goods  should  be 
returned ;  but  it  is  there  admitted  that  "  the  old  cases  under 
the  English  Statutes  evidently  favored  a  return,"  (p.  51),  and  the 
section  of  the  Revised  Statutes  there  quoted,  (2  Rev.  Stats.  530, 
§  53,)  is  broad  enough  to  include  a  discontinuance  whether  on 
the  motion  of  the  plaintiff  or  defendant.  It  is : — "  if  the 
property  specified  in  the  suit  have  been  delivered  to  the  plain- 
tiff, and  the  defendant  recover  judgment  by  discontinuance 
or  nonsuit,  such  judgment  shall  be,  that  the  defendant  have 
return  of  the  goods,  &c."  The  defendant  recovers  the  judg- 
ment, although  the  order  is  made  on  the  plaintiff's  motion. 

The  right  of  the  plaintiff  to  discontinue  his  action  having 
been  sustained  through  all  the  changes  of  the  law  until  the 
adoption  of  the  Code,  it  must  require  clear  and  unequivocal 
language  to  take  it  away.  It  is  not  to  be  taken  away  by  impli- 
cation, unless  the  implication  be  an  absolutely  necessary  con- 
sequence of  some  of  the  new  enactments.  The  parts  of  the 
Code  referred  to,  are  §  274, — allowing  the  court  to  grant  to  the 
defendant  any  affirmative  relief  to  which  he  may  be  entitled, — 
§  256, — allowing  either  party  after  issue  to  give  notice  of 
trial, — §  258, — allowing  either  party  noticing  the  cause  for 
trial  to  proceed  with  the  case  and  take  a  dismissal  of  the  com- 
plaint, or  a  verdict  or  judgment  as  the  case  may  require,— 
§  149, — allowing  the  defendant  in  his  answer  to  set  up  any  new 
matter  constituting  a  defence  or  counter-claim, — §  153, — allow- 
ing the  plaintiff  to  reply  to  an  answer  setting  up  a  counter- 
claim,— §  154, — allowing  the  defendant  when  the  plaintiff  fails 
to  reply  or  demur  within  the  time  prescribed  by  law,  to  move 
for  such  judgment  as  he  is  entitled,  and  if  the  case  require  it 
to  have  a  writ  of  inquiry  of  damages, — and  §  168, — declaring 
that  new  matter  in  the  answer,  set  up  as  a  counter-claim  is  to 
be  deemed  as  admitted  if  it  is  not  controverted. 

The  sections  allowing  a  defendant  after  issue  joined  to  notice 
the  cause  for  trial,  and  after  noticing  it,  to  proceed  with  the 


NEW-YORK.  49 


Seaboard  and  Roanoake  Railroad  Company  a.  Ward. 


case  and  take  such  judgment  as  the  case  requires,  apply  to 
all  defendants,  whether  they  set  up  a  counter-claim  or  not.  Yet 
it  is  not  denied  that  the  plaintiff  may  discontinue  except  when 
the  counter-claim  is  set  up.  Those  sections  do  not  therefore 
help  the  defendant's  position  ;  they  apply,  too,  only  after  issue 
is  joined,  not  to  this  case,  when  the  time  to  reply  has  not  yet 
expired.  Sections  149  and  153  only  allow  the  counter-claim  to 
be  set  up  as  a  defence  and  then  permit  the  plaintiff  to  reply  to 
it.  They  cannot  effect  this  question.  Section  154  allows  the 
defendants,  when  the  plaintiff  fails  to  reply  or  demur  to  a  coun- 
ter-claim, to  move  for  such  judgment  as  he  is  entitled  to.  That 
does  apply,  and  it  does  give  a  defendant  an  absolute  right  in  a 
certain  event,  to  have  an  affirmative  judgment  in  his  favor, 
but  it  is  not  until  these  events  occur,  that  it  gives  any  such 
right.  It  gives  the  right  and  limits  it,  and  gives  it  only  when 
the  plaintiff  fails  to  reply  or  demur  within  the  time  prescribed 
by  law.  Before  that  failure  on  the  part  of  the  plaintiff,  he 
retains  all  the  rights  which  he  had  before.  After  that,  he 
loses  the  right  to  discontinue,  except  with  the  special  leave  of 
the  court.  If  the  plaintiff  replies  to  the  counter-claim,  and  his 
reply  be  false,  or  he  cannot  sustain  it,  the  defendant  ought  not 
to  lose  any  right  which  he  would  have  had  if  the  false  or 
unsustainable  reply  had  not  been  put  in ;  and  therefore  in 
case  of  a  counter-claim  after  issue  joined,  the  defendant  notic- 
ing the  cause  for  trial  should,  (as  section  258  and  274  allow) 
have  his  affirmative  relief,  and  such  judgment  as  the  case  may 
require. 

The  notes  of  the  codifiers  to  their  report  of  1850,  under 
chapter  4  of  title  7,  as  to  "  the  answer,"  (p.  267,  271)  were 
referred  to,  to  show  that  they  intended  that  the  plaintiff  should 
not  have  leave  to  discontinue.  Such  no  doubt  was  the  inten- 
tion of  those  gentlemen  in  certain  cases,  as  one  of  them  present 
at  the  argument  suggested,  but  as  he  also  showed  they 
expressed  that  intention  not  in  the  chapter  as  to  answers, 
which  was  adopted  by  the  legislature,  but  in  chapter  1  of 
title  8,  relating  to  judgments  in  general,  which  chapter  was 
adopted  in  part  by  the  legislature,  but  with  the  exclusion  of 
the  section  referred  to.  This  shows  first  that  the  codifiers 

deemed  an  express  provision  necessary  to  cut  off  the  general 

4 


50  ABBOTTS'  PEACTICE  KEPOKTS. 

Seaboard  and  Roanoakc  Railroad  Company  a.  Ward. 

right  of  the  plaintiff  to  dismiss  his  own  action,  and  that  they 
did  not  mean  to  cut  it  off  by  implication,  and  next  that  the 
legislature  having  the  subject  before  them,  did  not  choose  to 
alter  the  old  law.  In  the  chapter  last  referred  to,  §  748  cor- 
responds with  §  245  of  the  Code,  sections  749  and  750  with  274 
of  the  Code,  and  section  751  with  section  275  of  the  Code. 
Then  follows  section  752,  which  was  not  adopted  and  which 
proposed  to  abolish  all  other  modes  of  dismissing  an  action, 
except  those  therein  specified ;  one  of  them  was  "  by  the  plain- 
tiff himself  at  any  time  before  trial,  if  a  provisional  remedy 
has  not  been  allowed,  or  counter-claim  made." 

It  would  seem  to  be  clear  that  the  legislature  did  not  intend 
to  abolish  this  ancient  and  firmly  established  right  of  a  plain- 
tiff, merely  because  a  counter-claim  was  made,  and  that  the 
codifiers  did  not  mean  so,  unless  their  express  provision  for 
that  purpose  should  be  adopted.  By  clear  implication  they 
have  abolished  it  when  the  plaintiff  fails  to  reply  or  demur  to 
the  counter-claim,  or  to  appear  at  the  trial,  but  then  only." 

Whether  under  the  general  power  of  the  court  to  control  its 
process  and  the  orders  made  by  it  or  in  its  name,  it  may  not 
when  the  defendant  will  otherwise  lose  his  redress,  vacate 
an  order  of  dismissal  entered  by  the  plaintiff,  need  not  be 
examined.  This  case  presents  no  such  circumstances. 

The  case  of  Cockle  against  Underwood^  decided  by  Judge 
Bosworth  in  the  Superior  Court,  has  been  submitted  to  us  since 
the  argument  of  this  cause.  In  that  case  the  plaintiff  had  failed 
to  reply  to  the  counter-claim,  within  the  time  prescribed  by 
law,  and  then  we  agree  that  the  plaintiff  cannot  dismiss  his 
complaint  without  special  leave. 

The  order  appealed  from  is  affirmed,  with  costs. 

*  Ante  p.  1. 


NEW-YOKE.  51 


Weed  a.  Pendleton. 


WEED  a.  PENDLETON. 
Supreme  Court,  First  District ;  General  Term,  November,  1854. 

JUDGMENT  KECORD. — REGULARITY. — ESTOPPEL  OF  JUDGMENT 

DEBTOK. 

Where  a  second  record  of  judgment  in  the  course  of  a  suit  was,  by  mistake,  made 
up  and  filed,  and  execution  issued  thereupon,  in  good  faith,  upon  the  supposition 
that  the  second  entry  of  judgment  was  in  fact  for  another  demand,  and  the-  de- 
fendant contrived  to  procure  satisfaction  of  the  first  entered  judgment,  and  then 
moved  to  vacate  the  second  for  irregularity  : 

Held,  that  he  was,  under  the  circumstances,  estopped,  by  procuring  the  first  judg- 
ment to  be  satisfied,  from  objecting  to  the  regularity  of  the  second. 

Motion  to  vacate  the  record  of  a  judgment. 

Pendleton,  the  judgment  debtor,  brought  an  action  in  the 
Superior  Court,  to  recover  damages  for  the  taking  of  his  prop- 
erty upon  execution,  issued  under  the  judgment  now  sought  to 
be  set  aside,  which  was  a  judgment  entered  in  the  Supreme 
Court,  but  the  Superior  Court  held  the  record  conclusive  to  jus- 
tify the  taking.  He  then  moved  this  court  at  special  term, 
upon  grounds  which  appear  in  the  opinion,  to  vacate  the  judg- 
ment and  take  the  record  from  the  files,  in  order  that  he 
might  recover  for  the  property  taken  upon  the  execution. 
The  motion  was  denied,  and  he  appealed. 

A,  Matthews,  for  the  motion. 
D.  D.  field,  in  opposition. 

MITCHELL,  J. — Pendleton  endorsed  to  C.  W.  Weed  three 
notes,  each  dated  February,  1837  ;  one  at  twelve  months,  for 
$4,308  97,  another  at  fifteen  months,  for  the  same  sum,  and 
the  third  at  eighteen  months,  for  $2,154  48.  On  the  first  note 
judgment  was  obtained  on  8th  of  May,  1838,  for  $4,450  12. 
On  the  second  note  an  action  was  commenced  31st  May,  1838, 
and  judgment  was  entered  on  it  2d  July,  1838,  for  $4,450  25. 
No  action  was  ever  brought  on  the  third  note  for  $2,154  48. 

The  attorneys  for  the  plaintiffs  are  dead,  but  it  appears  from 


52.  ABBOTTS'  PEACTICE  REPORTS. 

Weed  a.  Pendleton. 

their  register,  that  they  entered  in  it  the  commencement  of 
the  suit  on  the  second  note,  and  all  the  proceedings  to  the 
assessment  of  damages  and  taxation  of  costs,  but  did  not  enter 
the  fact  of  filing  the  judgment  record  ;  and  that  nearly  a  year 
after  that,  in  June,  1839,  a  clerk  of  theirs  filed  a  record  on  the 
last  mentioned  day,  and  made  an  entry  of  doing  so.  Thus  the 
plaintiffs  had  three  notes  endorsed  by  the  defendant,  and  three 
judgment  records — one  on  the  first  note,  another  on  the  second 
note,  and  a  third,  in  reality,  on  the  second  note,  but  which, 
after  a  lapse  of  time,  they  might  naturally  suppose,  if  they  did 
not  recollect  the  amount  of  the  notes,  was  for  the  third  note. 
On  the  15th  June,  1839,  execution  was  issued  on  this  third 
judgment  record  and  returned  wholly  unsatisfied.  Nothing 
was  done  on  either  judgment,  until  16th  February,  1849, 
nearly  ten  years  afterwards,  an  alias  fi.  fa.  was  issued  on  this 
last  judgment,  and  Pendleton's  property  was  taken  under  it. 
He  has  since  commenced  an  action  of  trespass  for  this  taking, 
and  as  the  judgment  record  cannot  be  impeached  in  that 
action,  he  moved  this  court  to  vacate  the  entry  of  the  third 

iudsrment. 
j     & 

This  is  a  motion  addressed  to  the  equity  of  the  court;  it  is 
necessary,  therefore,  to  see  whether  equity  requires  that  this 
motion  should  be  granted. 

After  the  levy,  Pendleton  discovered  that  the  third  judg- 
ment, as  well  as  the  second,  was  on  the  second  note,  and  was 
advised  that  the  third  was  a  nullity.  He  called  on  Charles 
"W.  "Weed,  who  was  attorney  for  the  plaintiffs,  in  the  summer 
or  fall  of  1849,  and  concealing  the  fact  that  he  and  his  counsel 
thought  the  third  judgment  void,  and  the  execution  under  it 
irregular,  and  that  he  had  discovered  that  the  third  judgment 
was  not  on  the  third  note,  but  on  the  second,— he  commenced 
the  conversation,  as  he  shows,  by  remarks,  which  must  have 
led  Weed  to  understand  that  all  three  of  the  judgments  were 
in  full  force,  and  that  the  execution  on  the  third  was  regular ; 
for  instead  of  intimating  that  the  execution  was  irregular,  he 
spoke  of  it  as  unjust  to  him,  because  it  was  issued  for  old  and 
extinguished  claims,  and  during  his  absence  from  the  city, 
and  in  violation  of  an  understanding  before  hand  that  he 
should  not  be  molested  in  respect  to  the  same ;  and  that  he 


NEW-YOKK.  53 


Weed  a.  Peridleton. 


-must  have  a  statement  of  the  disposition  that  had  been  made 
of  the  collateral  paper  which  had  been  placed  in  the  hands  of 
the  plaintiffs,  which  collateral  was  to  the  whole  debt.  He 
thus. suppressed  facts,  the  knowledge  of  which  he  knew  would 
have  prevented  "Weed  from  doing  what  "Weed  afterwards 
offered  to  do,  and  also  by  the  statements  made  by  him  led 
"Weed  to  believe  that  the  third  judgment,  and  the  execution  on 
it,  were  valid.  If  they  were  not  valid,  there  was  no  need  of 
Pendleton's  having  an  account  of  the  collateral  paper,  and 
they  could  not  much  molest  him ;  a  motion  to  set  them  aside 
was  all  that  he  needed.  Under  the  impression  thus  produced 
by  Pendleton,  "Weed  promised  to  procure,  and  did  procure  an 
-assignment  to  a  friend  of  Pendleton's,  of  the  two  first  judg- 
ments. Pendleton  having  got  them,  a  few  days  afterwards 
also  asked  for  and  obtained  satisfaction  pieces  for  those  two 
judgments,  and  filed  them.  And  "from  that  time"  he  says, 
"  his  counsel  made  various  endeavors  to  procure  satisfactory 
compensation  to  deponent  for  his  property,  which  had  been 
taken  and  sacrificed  to  the  extent  of  about  $20,000,  by  the 
sheriff's  sale,  under  said  alms  execution." 

This  seems  as  if  he  would  say,  that  having  thus  procured  a 
satisfaction  to  be  entered  of  the  first  two  judgments  without 
payment,  he  from  that  time  endeavored  to  defeat  the  third 
which  he  had  led  Weed  to  believe  was  valid  and  in  force. 
"When  Pendleton  came  and  complained  of  the  levy  on  his 
goods,  his  complaint  must  have  been  of  the  levy  under  the 
execution  on  the  third  judgment,  for  no  other  was  issued. 
"Weed  then  stated  to  him  that  he  could  not  satisfy  the  third, 
for  it  was  assigned  as  security  to  his  attorneys,  but  offered  to 
assign  the  first  and  second,  with  the  understanding,  at  least  on 
his  part,  that  he  would  retain  the  third  and  the  execution  on  it. 
When  Weed  thus  distinctly  stated  his  views,  Pendleton  was 
bound  to  decline  the  offer,  or  to  accept  it  with  the  condition 
which  he  knew  Weed  meant  to  attach  to  it,  or  disabuse  Weed 
from  the  false  impression  on  his  mind,  produced  in  part  by 
Pendleton's  aid.  Pendleton,  by  the  acceptance  of  the  two 
assignments  under  the  circumstances,  and  the  concealment 
which  he  practiced,  has  estopped  himself  from  setting  up  the 
invalidity  of  the  third  judgment,  at  least  on  a  motion  where 


54:  ABBOTTS'  PRACTICE  REPORTS. 


Weed  a.  Pendleton. 


he  seeks  affirmative  relief,  which  the  court  is  to  grant  only  if 
equity  require  it. 

The  defendant's  counsel  argued  as  if  the  third  judgment  were 
so  irregular,  that  it  was  a  matter  of  course,  to  set  it  aside.  It 
is  not  so.  That  judgment-record  was  founded  on  the  second 
note,  and  on  the  declaration  actually  served  on  it.  So  also  was 
the  second  judgment-record.  If  the  defendant  had  moved  to 
have  one  of  the  two  records  cancelled,  and  it  had  been  shown 
that  he  had  done  any  act,  in  consequence  of  which,  it  might  be 
difficult  to  sustain  the  second  judgment, — the  court  would  have 
sustained  the  third  and  cancelled  the  second.  So  here,  the 
defendant  having  procured  a  satisfaction  of  the  second,  without 
consideration,  or  by  causing  the  belief  that  the  third  was  valid, 
the  court  should  now  sustain  the  third,  as  the  true  record  under 
that  note.  Or,  if  the  second  were  not  satisfied,  the  court  might 
have  awarded  the  fi.  fa.  and  alias  fi.  fa.  so  as  to  apply  them 
to  the  second  judgment.  But  that  cannot  now  be  done,  in 
consequence  of  the  defendant's  procuring  a  satisfaction  of  that 
judgment.  The  act  of  the  defendant  in  seeking  a  satisfaction 
of  that  judgment,  after  he  had  obtained  an  assignment  of  it  to 
his  friend,  looks  as  if  he  had  laid  his  plan  thus  to  defeat  the 
power  of  the  equitable  interposition  of  the  court.  It  may  be 
that  no  unjust  motives  entered  the  defendant's  mind  until  he 
was  pursued  by  proceedings  supplementary  to  the  execution, 
and  that  until  then  he  intended  to  let  the  execution  remain, — 
and  this  was  intimated  by  his  counsel.  If  so,  then  both  parties 
meant  the  third  judgment  and  the  execution,  to  stand  as  part 
of  the  arrangement  under  which  the  first  and  second  judgments 
should  be  satisfied;  and  then  there  was  originally  a  good 
intent,  but  there  would  be  a  fraud  in  departing  from  that  mu- 
tual intent. 

It  was  argued  that  the  whole  debt  was  paid  in  fact.  The 
affidavits  on  that  question  are  not  very  satisfactory,  and  the 
defendant,  if  he  wishes  to,  may  have  a  reference  to  ascertain, 
that  fact. 

The  order  appealed  from  is  affirmed,  with  costs. 


NEW-YOKE.  55 


Markoe  a.  Aldrich. 


MARKOE  a.  ALDRICH. 
Supreme  Court:  First  District ;  General  Term,  Nov.,  1847, 

TESTIMONY  TAKEN  CONDITIONALLY. — PROOF  OF  FOREIGN 
RECORDS. — AMENDMENT  AFTER  VERDICT. 

Testimony  taken  conditionally,  is  admissible  upon  the  trial,  notwithstanding  that 

one  of  the  original  plaintiffs  has  died,  and  the  suit  is  continued  (under  t)  121  of 

the  Code,)  by  the  survivor. 
It  is  also  admissible  notwithstanding  the  witness  may  have  returned  to  the  State 

since  his  examination,  if  he  is  not  within  the  State  at  the  time  of  the  trial. 
The  proper  methods  of  proving  public  records  of  other  States  denned. 
When  a  record  improperly  attested  had  been  admitted  upon  the  trial,  and  the  proper 

certificates  were  produced  and  filed  upon  the  motion  for  a  new  trial — Held,  that 

a  new  trial  would  not  be  granted. 

Motion  for  a  new  trial. 

This  action  was  commenced  in  1848,  by  Braxton  and  Mar- 
koe, against  Aldrich.  Braxton  having  died  in  1850,  the  cause 
was  continued  by  Markoe,  pursuant  to  §  121  of  the  Code,  by 
a  supplemental  complaint,  filed  in  December,  1851. 

Upon  the  trial  before  Mitchell,  J.,  24  Nov.  1852,  the  plain- 
tiff, after  having  proved  the  absence  of  one  Harvey  Mills  from 
the  State,  offered  in  evidence  his  deposition,  taken  condition- 
ally, (pursuant  to  Rev.  Stats.]  art.  1,  title  3,  ch.  7,  Pt.  III.)  in 
April,  1851,  after  the  death  of  Braxton,  but  before  the  filing 
of  Markoe's  supplemental  complaint. 

The  defendant's  counsel  objected  to  the  admission  of  the 
deposition  upon  the  ground  that  at  the  time  it  was  taken,  the 
cause  of  Braxton  and  Markoe  a.  Aldrich,  in  which  the  deposi- 
tion was  entitled,  was  not  pending.  Also  upon  the  ground 
that  it  appeared  from  the  testimony  offered  by  plaintiff  rela- 
tive to  the  absence  of  Mills,  that  he  had  returned  to  the  city 
of  New- York  after  his  conditional  examination,  although  he 
did  not  remain  until  the  trial. 

The  evidence  was  admitted  and  defendant  excepted. 

The  plaintiff  then  offered  in  evidence  a  copy  of  a  mortgage, 
purporting  to  have  been  acknowledged  and  recorded  in  Cass 


56  ABBOTTS'  PKACTICE  KEPORTS. 

Markoe  a.  Aldrich. 

County,  Indiana.  It  was  accompanied  by  a  certificate,  with 
seal  annexed,  of  one  Douglass,  as  Recorder  of  Cass  county,  that 
the  copy  was  a  true  copy  of  records  in  his  office, — by  a  certifi- 
cate of  one  Duret,  as  clerk  of  the  Cass  Circuit  Court,  with 
seal  of  that  court  annexed,  that  Douglass  was  at  the  date  of 
his  certificate,  the  recorder  of  the  county,  and  that  this  signa- 
ture to  the  certificate  was  genuine, — and  by  the  further  certifi- 
cate of  Horace  P.  Biddle,  as  president  judge  of  the  Southern 
Judicial  District,  and  of  the  Cass  Circuit  Court,  that  Duret 
was  at  the  date  of  his  certificate,  clerk  of  the  Cass  Circuit 
Court,  and  that  Duret's  certificate  was  in  due  form. 

The  defendant  objected  to  this  evidence  on  the  ground  that 
the  certificates  did  not  constitute  the  proper  authentication  of 
a  mortgage  to  allow  it  to  be  read  in  evidence.  But  the  judge 
overruled  the  objection,  and  admitted  the  evidence,  and 
defendant  excepted. 

The  jury  found  a  verdict  for  the  plaintiff,  and  defendant 
moved  to  set  aside  the  verdict  and  for  a  new  trial. 

E.  D.  Lawton^  for  plaintiff. 
C.  P.  Kirkland,  for  defendant. 

CLERKE,  J. — I.  The  proposition  of  defendant's  counsel  that 
the  testimony  was  taken  in  a  suit  not  pending,  is  entirely  incon- 
sistent with  the  provisions  of  the  Revised  Statutes,  and  the 
Code  declaring  that  no  action  shall  abate  by  the  death,  &c.  of 
a  party,  (%  JRev.  Stats.  387,  §  4,  Code  §  121).  If  it  did  not  abate 
notwithstanding  the  death  of  Braxton,  one  of  the  plaintiffs,  it 
was  still  pending,  when  the  testimony  of  Mills  was  taken  con- 
ditionally ;  it  was  taken  in  this  suit,  which  according  to  the 
Code  and  the  Revised  Statutes,  has  been  continued  and  not 
originated  anew,  after  the  death  of  Braxton. 

U.  The  defendant's  counsel  objected  to  this  testimony  also, 
on  the  'ground  that  having  been  taken  in  April,  1851,  the 
•witness  had  not  continued  absent  from  the  State,  but  had 
returned  and  remained  until  about  two  weeks  previous  to  the 
trial.  He  maintains  it  must  be  an  uninterrupted  absence  from 
the  time  of  taking  the  testimony  until  the  beginning  of  the 
trial.  I  think  this  would  be  a  construction  of  the  statute  cal- 


NEW-YOKE.  5T 


Markoe  a.  Aldrich. 


culated  to  defeat  its  design,  and  to  make  the  admissibility  of 
the  testimony  dependent  upon  the  movements  of  a  person 
over  whom  the  party  requiring  the  testimony  can  have  no 
control.  He  may  go  and  come,  but  if  it  is  shewn  he  is  not 
here  at  the  time  of  trial,  the  end  of  the  statute  is  answered. 
It  could  never  have  been  intended  that  every  time  the  witness 
takes  a  new  departure  from  the  State,  a  new  order  is  to  be 
granted,  and  a  repetition  of  the  same  examination  is  to  be 
made.  This  would  be  multiplying  work  without  an  adequate 
object.  The  salutary  usage  of  the  common  law,  requiring  in 
all  practicable  cases  the  presence  of  the  witness  at  the  trial, 
is  sufficiently  favored  and  conserved  by  excluding  testimony 
taken  conditionally,  when  it  is  not  shewn  that  the  witness  is 
absent  at  the  time  of  the  trial. 

III.  The  objection  that  the  mortgage  was  not  properly 
authenticated,  seems  to  be  more  tenable.  It  was  recorded  in 
Cass  County,  State  of  Indiana,  in  the  office  of  the  recorder  of 
that  county,  a  public  office  established  in  every  county  of  that 
state,  similar  to  that  of  register  of  the  city  and  county  of  New 
York.  The  certificate  of  this  officer  was  produced  with  that 
of  the  clerk  of  Cass  Circuit  Court,  attesting  that  he  was 
recorder,  and  that  his  signature  was  genuine  with  the  seal  of 
the  court  annexed,  together  with  the  certificate  of  the  presid  • 
ing  judge  of  that  court  attesting  the  clerk's  certificate. 

By  the  act  of  Congress  of  1790,  it  is  provided  that  the 
records  and  judicial  proceedings  of  the  courts  of  any  State 
shall  be  proved  or  admitted  in  any  other  court  within  the 
United  States,  by  the  attestation  of  the  clerk  and  the  seal  of 
the  court  annexed,  if  there  be  a  seal,  together  with  a  certificate 
of  the  judge,  chief  justice  or  presiding  magistrate  as  the  case 
may  be,  that  the  said  attestation  is  in  due  form.  The  record- 
ing of  the  mortgage  in  this  case  seems  to  have  been  authenti- 
cated under  this  act;  which  applies  only  to  records  and  judi- 
cial proceedings  in  courts. 

By  the  act  of  March  27,  1804,  §  1,  however  it  is  provided 
"  that  all  records  and  exemplifications  of  office  books  which 
may  be  kept  in  any  public  office  of  any  State,  not  a/ppertavn- 
ing  to- a  cowt,  shall  be  proved  or  admitted  into  any  other 
court  or  office  in  any  other  State  by  the  attestation  of  the 


58  ABBOTTS'  PRACTICE  REPORTS. 

Pringle  a.  Chambers. 

keeper  of  such  recordsxor  books,  and  the  seal  of  his  office 
thereto  annexed,  if  there  be  a  seal,  together  with  a  certificate 
of  the  presiding  judge  of  the  court  of  the  county  or  district,  as 
the  case  may  be  in  which  such  office  is  or  may  be  kept,  &c., 
or  of  the  governor,  &c.,  that  such  attestation  is  in  due  form, 
and  by  the  proper  officer,  and  such  certificate,  if  given  by  the 
presiding  justice  of  a  court,  shall  be  further  authenticated  by 
the  clerk  of  the  court,  who  shall  certify  under  his  hand  and 
seal  of  office,  that  the  presiding  justice  is  duly  commissioned 
and  qualified."  So  that  the  certificates  of  the  judge  and  clerk 
are  in  this  case  reversed  both  in  their  contents  and  in  the 
order  in  which  they  are  presented.  The  judge  should  have 
certified  to  the  genuineness  and  authenticity  of  the  recorder's 
certificate  and  the  clerk  to  that  of  the  judge. 

IV.  But  this  is  an  error  for  which  the  court  will  not  grant 
a  new  trial  if  it  can  be  rectified ;  and  the  case  is  now  amended 
by  consent,  the  proper  certificates  being  produced  and  filed. 

Judgment  affirmed  with  costs. 


PRINGLE  a.  CHAMBERS. 

Supreme  Court,  First  District ;  General  Term,  November,  1854. 
ALTERATIONS  IN  AGREEMENT. — BURDEN  OF  PROOF. 

It  is  a  question  of  fact  which  should  be  submitted  to  the  jury,  whether  material 

alterations  appearing  upon  the  face  of  an  instrument  containing  an  agreement 

inter  paries,  were  made  before  or  after  its  execution. 
An  admission  by  one  of  two  plaintiffs,  embodied  in  his  agreement  with  a  third  party, 

to  the  effect  that  the  note  now  in  suit  was  void, — held  admissible  in  favor  of  the 

present  defendant. 

Appeal  from  judgment  upon  a  verdict. 

The  plaintiffs,  against  whom  judgment  was  rendered  at  cir- 
cuit, appealed  upon  exceptions  to  the  rulings  of  the  court, 
allowing  two  written  agreements,  in  one  of  which  there  was  a 
material  alteration,  and  the  other  of  which  was  made  between 
one  of  the  plaintiffs  and  a  third  person,  to  be  given,  in  evi- 
dence by  the  defendant.  There  were  also  other  exceptions 


NEW-YORK.  59 


Pringle  a.  Chambers. 


raising  no  important  points  of  practice.     The  facts  involved, 
sufficiently  appear,  in  the  opinion  of  the  court. 

J.  E.  Burrill,  jr.,  for  plaintiff.  I.  The  alteration  in  the 
agreement  No.  1,  was  material,  and  beneficial  to  the  defend- 
ant. The  defendant  was  bound  in  some  manner  to  explain 
or  account  for  the  alteration,  and  in  the  absence  of  such 
explanation,  the  evidence  should  have  been  rejected.  Acker 
v.  Ledyard,  8  Barb.  516  ;  Tillou  v.  The  Clinton  and  Essex 
Insurance  Company,  7  Barb.  568 ;  Jackson  v.  Osborn,  2 
Wend.,  555 ;  Waring  v.  Smyth,  2  Barb.  Ch.  B.,  123  n.  Herrick 
v.  Malen,  22  Wend.,  388 ;  Knight  v.  Clements,  8  Ad.  &  E.,  215  \ 
Henman  v.  Dickinson,  5  Bing.  183 ;  Jackson  v.  Jacobi,  9  Cow. 
128  ;  Cooper  v.  Becket,  4  Moore,  P.  P.  C.  419  ;  Van  Buren  v. 
Cockburn,  14,  Barb.  122. 

II.  The  court  erred  in  admitting  the  agreement  of  Jacob  Prin- 
gle, No.  4,  because  there  was  no  proof  that  it  was  entered  into 
by  J.  L.  Chambers,  for  the  benefit  of  the  defendant,  and  it 
could  not  inure  to  the  benefit  of  defendant  to  defeat  this 
action,  and  because  there  was  no  proof  of  any  authority  to 
Jacob  Pringle  to  bind  John  P.  Pringle  under  seal. 

Loomis,  Thayer  <&  Smith,  attorneys  for  defendant. — I.  No- 
proof  was  offered  showing  when  the  alteration  was  made  ;  and 
if  the  court  was  allowed  in  the  absence  of  proof  to  indulge  in 
any  presumption  as  to  the  time  of  the  alteration,  the  rule  which 
requires  all  presumptions  to  be  in  favor  of  innocence  and 
validity,  required  the  court  to  declare  that  the  alteration  was 
antecedent  to,  or  cotemporaneous  with  the  execution.  (1 
Greenl.  Ev.  678,  §  564 ;  U.  S.  v.  Spalding,  2  Mason,  478 ;  Jackson 
v.  Osborn,  2  Wend.  556  ;  Jackson  v.  Malin  15,  Johns.  296. 

II.  The  agreement  of  Jacob  Pringle  was  admissible,  if  not  as 
an  agreement,  certainly  as  an  admission  that  the  notes  were 
null  and  void. 

CLEKKE,  J. — This  was  an  action  on  an  agreement  given  by 
defendant,  on  the  assignment  of  a  purchase  of  a  patent  right, 
promising  to  pay  five  hundred  dollars  in  nine  months,  and  one 
thousand  dollars  in  twelve  months,  after  date  ;  payment  being 
contingent  on  his  continuing  to  manufacture  and  vend  the 
machine  to  which  the  patent  right  related. 


60  ABBOTTS'  PRACTICE  REPORTS. 


Pringle  a.  Chambers. 


By  an  agreement  of  the  same  date,  signed  by  all  the  parties, 
it  was  provided  that  if  the  defendant  should  find  the  business 
of  manufacturing,  vending  and  selling  this  machine  unprofita- 
ble, he  might  duly  notify  the  plaintiffs  in  writing,  either  in  per- 
son or  by  a  written  notice,  directed  and  duly  mailed  to  Sumner 
Hill  Post-Office,  Pa.,  stating  that  he  intended  to  cancel  and 
surrender  and  give  over  the  articles  thereto  annexed  ;  upon 
which  the  same  should  be  null  and  void,  provided  the  notice 
should  be  given  within  nine  months. 

This  action  is  for  the  first  amount  of  $500,  giving  credit  for 
$5  to  defendant ;  the  demand  of  judgment  being  $495,  with 
interest  from  August  1,  1850. 

The  defendant  proved  a  notice  mailed  and  deposited  in  the 
Post-Office  on  the  6th  of  April,  1850,  directed  to  the  plaintiffs, 
at  Sumner  Hill  Post-Office,  Pa.,  notifying  the  plaintiffs,  in 
compliance  with  the  agreement,  that  the  manufacturing  of  the 
machine  was  unprofitable,  and  that  he  ceased  to  manufacture 
and  vend  it ;  requesting  the  plaintiffs  to  annul  the  articles  of 
agreement. 

In  support  further  of  the  defence,  an  agreement  relating  also 
to  the  matters,  dated  1st  of  August,  1850,  and  marked  Exhibit 
No.  1,  was  introduced,  signed  by  Jacob  Pringle,  at  the  end  of 
which,  and  after  the  words  "  in  witness  whereof  I  hereunto  set 
my  hand  and  seal,"  were  added  the  words  "  and  I  further  agree 
to  return  the  obligation  of  said  Chambers,  dated  Oct.  30,  '49,  at  9 
and  12  mos.,for  $1,500 ;  all  of  which  is  null  and  void." 

Another  paper  was  also  introduced  by  defendant,  dated  July 
5,  1850,  and  marked  Exhibit  No.  4,  signed  Jacob  Pringle, 
acknowledging  the  receipt  of  thirty-seven  dollars  from  J.  L. 
Chambers,  (not  the  defendant),  which  sum  Pringle  binds 
himself  to  use  in  and  for  the  construction  of  this  machine,  to 
be  completed  before  the  20th  July,  and  to  refund  thirty-five 
dollars  to  said  Chambers,  in  case  he  should  refuse  to  receive 
the  machine  ;  and  then  adding,  beginning  the  word  also  with 
a  small  letter :  "  also,  I  obligate  myself  to  refund  and  return 
Mr.  Chambers'  (the  defendant,)  notes  dated  30th  October,  1849, 
one  at  9  months  for  $500,  and  one  at  12  months,  for  $1,000, 
being  null  and  void. 

The  last  two  papers  were  introduced  in   confirmation  of 


NEW-YOKK.  61 


Pringle  a.  Chambers. 


the  sufficiency  of  the  notice,  and  to  show  that  Jacob  Pringle 
considered  the  agreement  or  note  on  which  this  action  was 
brought,  to  have  been  cancelled  by  the  notice,  pursuant  to 
the  terms  of  the  first  agreement. 

I.  The  plaintiff's  counsel  objected  to  the  introduction  of  the 
paper,  on  the  ground  that  it  was  apparent  on  the  face  of  the 
paper  that  it  had  been  altered  since  it  was  executed  and 
delivered.  The  judge  at  the  trial  overruled  the  objection, 
leaving  the  question  to  the  jury  as  to  the  time  when  the  altera- 
tion was  made. 

The  counsel,  certainly,  demanded  more  by  this  objection 
than  I  have  noticed  in  any  books  of  modern  authority,  with 
the  exception  of  the  legal  novel  called  Ten  Thousand  a  Y^ear, 
written  by  Mr.  Warren,  in  which  Lord  "Widdrington,  in  the 
fictitious  case  of  "Doe  on  the  Demise  of  Titmouse  against 
Jolter,"  is  described  as  refusing  to  receive  a  deed  in  evidence, 
because  it  had  an  erasure  in  a  material  part  of  it ;  and  so  the 
real  defendant,  Aubrey,  lost  ten  thousand  a  year,  and  his  posi- 
tion in  society. 

By  this  objection  the  counsel  did  not,  either  in  the  case  of  Doe 
v.  Jolter,  or  of  Pringle  v.  Chambers,  ask  the  court  to  charge 
the  jury  that  the  defendant  was  bound  in  some  manner  to 
explain  or  account  for  the  alteration,  but  that  the  question 
should  not  go  to  the  jury  at  all.  Where  there  are  erasures  or 
interlineations,  or  very  material  alterations  appearing  on  the 
face  of  an  instrument,  it  becomes  a  question  of  fact  for  the 
jury  whether  they  were  made  before  or  after  execution  ;  and, 
as  Mr.  Evans,  in  his  edition  of  Pothier,  says  : — "  The  decision 
of  that  question  will  in  a  great  measure  depend  upon  the  cir- 
cumstances of  each  individual  case,"  and  it  is  a  salutary  rule 
which  I  think  our  courts  generally  are  disposed  to  adopt, 
though  as  yet  not  with  perfect  unanimity,  that  where  the  alter- 
ation appears  to  be  suspicious  on  its  face,  and  is  not  duly 
noted,  the  onus  lies  with  the  party  who  claims  that  the  altera- 
tion was  genuine.  But  nothing  of  this  kind  was  required  by 
the  plaintiff's  counsel.  Both  in  his  objection  to  the  admissi- 
bility  of  the  instrument,  in  the  first  instance,  and  his  request 
how  the  judge  should  charge  the  jury,  he  insisted  that  the  suf- 
ficiency as  well  as  the  adinissibility  of  the  instrument  were 


62  ABBOTTS'  PRACTICE  REPORTS. 

Pringle  a.  Chambers. 

exclusively  for  the  court.  The  judge  left  it  with  the  jury  to 
say  when  the  alteration  was  made,  and  stated  to  them,  if  it  was 
made  after  the  delivery,  it  could  have  no  effect.  This  ruling 
was  perfectly  correct,  although  it  is  not  precisely  in  keeping 
with  the  decision  of  Lord  Widdrington  on  the  important  occa- 
sion to  which  I  have  referred,  in  a  case  described  by  one  who  is 
not  only  celebrated  as  a  writer  of  many  interesting  fictions,  but 
also  as  the  author  of  some  useful  elementary  legal  works. 

II.  "Was  the  defendant  obliged  to  show  that  the  business  of 
manufacturing  and  vending  the  machine  was  unprofitable  in 
fact ; — did  the  onus  to  do  so  lay  upon  him,  so  that  he  must  show 
it  before  he  could  claim  the  benefit  of  that  part  of  the  agree- 
ment providing  for  giving  the  notice  and  rescinding  the 
contract  ? 

The  court  charged  the  jury  that  if  the  written  notice  was 
sent  as  testified  by  the  witness,  that  annulled  the  contract  as  to 
the  defendant.  In  the  absence  of  any  proof  on  the  part  of  the 
plaintiffs  showing  that  the  business  was  profitable,  this  was 
correct.  The  agreement  left  it  to  the  defendant  to  determine 
whether  the  manufacture  was  profitable  or  not ;  and  this  was 
safe  for  all  parties,  for  it  may  be  taken  for  granted  that  the 
defendant  would  not  relinquish  the  right  if  he  found  it  profit- 
able. The  plaintiffs  might  have  been  permitted  to  show  that 
the  statement  in  the  notice  was  untrue,  but  he  gave  no  evidence 
on  the  subject,  and  the  jury  have  nothing  to  do  but  to  decide 
upon  the  sufficiency  of  the  notice  itself,  corroborated  by  exhi- 
bits No.  1  and  No.  4,  both  of  which,  as  I  have  already  inti- 
mated, were  introduced  for  this  purpose.  They  were  intro- 
duced rather  as  admissions  than  as  agreements.  The  paper 
(Exhibit  No.  4),  dated  July  5,  1850,  is  a  paper  with  which  the 
defendant  has  directly  nothing  to  do.  It  certainly  does  not 
amount  to  an  agreement  between  him  and  Jacob  Pringle  ;  but 
that  is  no  reason  why  a  certain  statement  in  it  is  not  effectual 
as  an  admission  against  Pringle,  made  against  his  own  interest, 
used  as  evidence  in  favor  of  the  defendant. 

If  the  evidence  offered  by  the  plaintiff  had  been  admit- 
ted by  the  court,  it  might  have  shown  that  the  defendant  manu- 
factured the  machine  after  he  sent  the  notice  cancelling  the 
agreement,  but  this  could  have  no  effect  in  determining  whether 


NEW-YOKK.  63 


Marks  a.  Bard. 


the  agreement  was  actually  cancelled  or  not.  It  could  have  no 
tendency  to  show  whether  the  manufacture  was  profitable  or 
unprofitable  at  the  time  the  notice  was  sent.  Neither  could  it 
have  shown  a  waiver  ;  there  could  have  been  no  waiver  in  the 
proper  sense  of  the  term  after  the  notice  and  the  acquiescence 
of  the  plaintiff  as  proved ;  there  could  only  be  a  renewal  of\ 
the  agreement ;  and  if  this  restored  the  parties  to  their  original 
rights  and  liabilities,  it  should  have  been  proved.  No  offer 
was  made  to  prove  anything  of  the  kind,  and  the  court 
properly  refused  to  receive  the  testimony. 
The  judgment  should  be  affirmed  with  costs. 


MARKS  a.  BARD. 

Supreme  Court,  First  District ;  General  Term,  November,  1854. 
JOINDER  OF  PARTIES. — COSTS. — FORM  OF  JUDGMENT. 

It  appearing  upon  the  trial  of  an  action  brought  against  seven  defendants,  that  five 
of  them  only  were  liable,  the  plaintiff  moved  to  strike  out  the  names  of  the  other 
two.  Motion  granted  with  the  addition  that  he  pay  their  costs  ;  and  judgment 
rendered  in  favor  of  the  two  for  their  costs,  and  Wgainst  the  five  for  debt  and  costs. 

The  allowance  of  costs  to  the  two  defendants  severed,  sustained  on  appeal. 

The  proper  form  of  judgment  in  such  a  case 

Appeal  from  an  order. 

The  facts  in  this  case  sufficiently  appear  in  the  opinion  of 
the  court. 

A.  R.  Dyett,  for  plaintiff. 

Messrs.  Holden  and  Thayer,  for  defendants. 

MITCHELL,  J. — The  plaintiff  sued  E.  H.  Bard,  and  J.  Bard,  jr., 
with  five  other  defendants,  as  joint  makers  of  a  promis- 
sory note.  These  two  defendants,  with  four  of  the  other 
defendants,  put  in  an  answer  in  which  all  six  denied  that  the 
defendants  made  the  note  in  question,  or  that  the  defendants 
were  partners ;  and  these  two  defendants  also  denied  all  facts 
stated  in  the  complaint.  At  the  trial  the  plaintiff  moved  to 


64  ABBOTTS'  PRACTICE  REPORTS. 

Marks  a.  Bard. 

strike  out  the  names  of  these  two  defendants  from  the  com- 
plaint, and  to  dismiss  the  action  as  to  them,  and  his  motion 
was  granted  with  the  addition  that  he  pay  one  bill  of  costs  to 
these  two  defendants.  From  the  latter  part  of  this  order  the 
plaintiff  appeals. 

It  was  a  matter  of  course  if  his  motion  was  granted,  that  the 
plaintiff  should  pay  the  costs  of  the  judgment  to  be  entered 
against  him  in  favor  of  these  two  defendants.  He  himself 
asked  to  discontinue  the  action  as  to  them :  he  thus  asked  to 
separate  them  from  the  other  defendants,  and  became  subject 
to  the  costs  that  would  follow  from  that  separation.  If  their 
joining  with  the  other  defendants  in  making  a  defence  would 
ordinarily  have  compelled  them  to  share  the  fate  of  those 
defendants,  the  plaintiff's  own  motion  released  them  from 
that  position.  His  complaint  was  joint  as  to  all,  and  the 
answer  followed  it  and  was  joint.  His  motion  severed  these 
defendants,  so  that  his  complaint  was  no  longer  to  be  deemed 
as  joining  them  with  the  other  defendants,  and  it  must  (to  do 
justice)  be  deemed  also  to  have  severed  the  answers  of  these 
defendants  also.  If  this  were  not  so,  still  the  permission  to 
discontinue  as  to  the  two  defendants,  was  in  the  discretion  of 
the  court,  and  was  evidently  granted  only  on  condition  that 
they  be  paid  their  costs.  If  the  plaintiff  had  not  accepted  this 
condition,  he  would  have  been  non-suited  for  suing  as  part- 
ners those  who  were  not  partners. 

Judgment  should  be  affirmed  with  costs. 

CLEEKE,  Ji}  concurred. 

ROOSEVELT,  J. — Technically  the  judgment  should  have  been, 
a  dismissal  of  the  complaint  with  costs ;  with  leave  reserved 
to  plaintiff  to  amend  by  striking  out  the  two  superfluous 
defendants  on  payment  of  their  costs ;  and  in  that  case  judg- 
ment to  be  rendered  against  the  other  defendants  with  costs. 
Then,  in  either  event  the  plaintiff  must  have  paid  the  costs  of 
those  two  defendants.  Under  the  present  judgment  he  does 
no  more.  The  plaintiff  moved.  He  has  no  substantial  ground 
of  complaint,  and  not  being  injured,  he  cannot  appeal. 


NEW-YOKK.  65 


Lane  a.  Beam. 


LANE  a.  BEAM. 

Supreme  Court,  first  District;  General  Term,  November,  1854. 
AMENDMENT. — CHANGING  NATUKE  OP  ACTION. 

Plaintiff  purposely  commenced  his  action  upon  contract,  with  a  view  to  obtain  an 
order  for  publication  and  warrant  of  attachment.  Having  obtained  this,  he 
applied  for  leave  to  amend  the  summons  and  complaint,  so  as  to  found  the  action, 
not  upon  contract,  but  upon  tort. 

Held,  that  the  application  was  properly  denied,  at  special  term. 

Motion  for  leave  to  amend  summons  and  complaint. 

The  plaintiff  commenced  an  action  upon  contract  for  goods 
sold,  and  after  obtaining  an  attachment  and  order  for  publica- 
tion, applied  for  leave  to  amend  his  summons  and  complaint, 
so  as  to  make  the  action  "substantially  the  common  law 
action  of  trover  and  conversion"  of  the  goods. 

D.  Evans,  for  plaintiff. 

W.  S.  Rowland,  for  defendant. 

MITCHELL,  J. — As  this  case  was  stated  by  the  counsel  for  the 
plaintiff,  and  as  may  be  conjectured  from  the  affidavits,  the 
plaintiff  commenced  his  action  as  in  contract,  purposely  and 
deliberately,  that  he  might  be  sure  not  only  of  an  attachment 
against  the  defendant  as  a  non-resident,  but  also  of  being  able 
to  procure  an  order  for  publication  against  him,  which  he 
could  not  obtain  if  he  proceeded  for  a  tort.  Having  by  this 
means  procured  the  appearance  of  the  defendant,  he  moved  at 
special  term  to  change  his  summons  and  complaint,  so  that 
they  should  not  be  on  contract,  but  on  tort,  for  converting  the 
plaintiff's  goods. 

The  173d  section  of  the  Code  allows  an  amendment,  by  cor- 
recting a  mistake  in  the  name  of  a  party,  or  a  mistake  in  any 
other  respect.  But  then  there  was  no  mistake — there  was  a 


66  ABBOTTS'  PEACTICE  REPORTS. 

Lane  a.  Beam. 

deliberate  purpose  in  making  the  statement  of  the  action  as  it 
is.    That  section,  therefore,  does  not  aid  the  plaintiff. 

The  power  of  the  court  to  amend  proceedings  before  it,  is  a 
result  of  the  control  which  it  has  over  its  process  and  plead- 
ings, and  is  not  conferred  by  the  Code.  The  legislature  has 
steadily  shown  its  desire  that  this  power  should  be  liberally 
exercised,  and  has  never  (it  is  believed)  curtailed  it.  The 
court  are  disposed  to  conform  to  this  exhibition  of  legislative 
will,  and  to  allow  any  amendment  that  justice  may  require. 

Does  justice  call  for  this  amendment  ?  The  plaintiff  has 
played  his  game  with  an  object  in  view,  and  succeeded  in 
that,  and  he  should  not  be  allowed  now  to  seek  another  advan- 
tage inconsistent  with  his  first  successful  scheme.  The  rights 
of  the  defendant,  and  of  the  sureties,  who  entered  into  bonds 
on  the  discharge  of  the  attachment,  would  be  materially 
changed  by  the  proposed  alteration.  In  this  action  on  con- 
tract, no  more  could  be  recovered  than  the  price  for  which 
the  goods  were  sold — in  the  action  for  the  conversion,  the  value 
of  the  goods  and  damages  for  the  conversion,  might  be  recov- 
ered, the  last  being  somewhat  in  the  discretion  of  the  jury, 
and  the  whole  might  exceed  the  price  of  the  sale.  It  was  said, 
that  under  the  old  system,  the  court  allowed  an  ac  etiam  in  a 
capias  to  be  changed  from  covenant  to  assumpsit,  and  said  the 
bail  had  no  right  to  object  to  the  amendment.  (Blue  v.  Stout, 
3  Cow.  354:.)  The  damages  to  be  recovered,  would  be  the 
same,  whether  the  action  were  covenant  or  assumpsit,  and  so 
the  bail  would  not  be  damaged  by  the  change ;  and  the  bail 
have  no  right  to  object  to  an  amendment  in  the  original  suit, 
their  time  to  object  is  when  they  are  sued.  Under  the  cir- 
cumstances, there  is  no  ground  for  disturbing  the  decision  at 
special  term,  refusing  to  allow  the  amendment. 

Order  affirmed,  with  costs. 


NEW-YOKE.  67 


Le  Roy  a.  Lowber. 


LEROY  a.  LOWBEft. 

Supreine  Court,  First  District  •  General  Term,  November,  1854. 
REFORMATION  OF  AGREEMENT — PKOPEE  RELIEF. 

-Upon  a  dissolution  of  partnership  Lowber  offered  that  Le  Roy  should  take  all  the 
assets,  excepting  certain  machinery,  upon  conditions,  that  he  would  pay  all  the 
debts  of  the  firm,  and  that  whatever  amount  should  be  realized  above  $20,000 
should  belong  to  Lowber  ;  also  promising  to  furnish  a  list  of  assets.  This 
offer  was  accepted.  Lowber  subsequently  delivered  to  Le  Roy  the  promised  list 
of  assets,  in  which  the  condition  of  the  partnership  affairs  being  more  unfavorable 
than  he  had  supposed,  he  voluntarily  included  the  machinery  excepted  in  his 
original  proposition. 

Held,  at  special  term,  upon  application  as  to  a  court  of  equity  to  reform  the  agree- 
ment, so  that  it  should  vest  the  machinery  in  Le  Roy,  that  his  proper  remedy  lay 
in  treating  the  transactions  subsequent  to  his  acceptance  of  Lowber's  offer  as  a 
new  and  distinct  agreement  substituted  for  and  superseding  the  original  one. 

Held,  by  the  general  term,  overruling  this  decision,  that  the  proper  relief  was  a 
decree  that  the  exception  in  the  original  agreement  reserving  the  machinery  to 
Lowber  was  founded  in  mistake,  and  should  be  stricken  out ;  and  that  the  agree- 
ment should  be  reformed  accordingly. 

Appeal  from  a  dismissal  of  complaint. 

This  action  was  brought  to  have  a  certain  agreement  of 
dissolution  of  partnership  between  the  plaintiff  and  the  defend- 
ant, construed  as  if  a  certain  list  of  assets  were  a  part  of  it,  or 
so  reformed  as  to  carry  into  effect  the  alleged  intention  of  the 
parties  to  have  the  list  of  assets  so  considered  ;  also  to  have 
the  defendant  enjoined  from  enforcing  a  certain  judgment 
recovered  by  him  at  law  in  the  New  York  Superior  Court 
against  the  plaintiff. 

The  principal  facts  upon  which  the  application  for  this 
equitable  relief  was  granted  were  as  follows  : 

In  July,  1845,  Lowber  was  manufacturing  and  dealing  in 
lead  pipe,  and  entered  into  partnership  with  Jacob  Le  Roy  and 
his  son,  Thomas  Otis  Le  Roy,  for  the  continuance  of  that 
business. 

Jacob  Le  Roy  was  special  partner,  and  contributed  $25,000 
in  cash. 


68  ABBOTTS'  PEACTICE  REPORTS. 

Le  Roy  a.  Lowber. 

Lowber  was  a  general  partner,  and  contributed  $23,032  50, 
of  which  about  $1200  was  in  cash,  and  the  balance  in  notes* 
accounts,  stocks,  and  certain  machinery  and  fixtures.  He  also 
immediately  drew  out  from  the  partnership  funds  above  $8,000. 

In  March  or  April,  1846,  Lowber  informed  Jacob  Le  Roy 
that  the  partnership  had  become  embarrassed,  and  solicited  a 
further  advance.  Le  Roy  then  made  an  examination  into  the 
accounts,  for  the  first  time,  as  appeared,  expressed  himself 
dissatisfied  with  the  management  of  aifairs,  refused  to  go  on, 
and  demanded  a  dissolution. 

Lowber  then  offered  to  pay  the  elder  Le  Roy  $20,000  for  his 
interest  in  the  firm,  and  to  secure  the  debts  of  the  firm.  This 
offer  Le  Roy  accepted.  But  Lowber  not  having  means  to 
perform  it,  sent  to  him  a  letter  dated  April  4,  1846,  proposing 
a  dissolution  upon  terms,  in  substance,  that  Le  Roy  should 
take  all  the  assets  of  the  firm,  not  appertaining  to  the  machinery, 
and  pay  the  debts  of  the  firm,  among  which  were  several 
claims  upon  the  mill  and  engine  used  in  the  manufacturing ; 
and  that  defendant  should  take  all  machinery  and  appurte- 
nances then  on  hand,  the  arrangement  to  go  into  effect  Monday, 
April  6  ;  stipulating  in  a  postscript  that  all  amounts  over  and 
above  $20,000  which  might  be  realized  by  Le  Roy  should  be 
paid  over  to  Lowber.  By  the  messenger  who  conveyed  this 
letter  to  Le  Roy,  Lowber  also  sent  a  verbal  message  promising 
to  furnish  him  with  a  schedule  of  assets  which  were  to  come 
to  Le  Roy  under  the  proposed  arrangement. 

Le  Roy  accepted  this  proposal. 

Upon  the  5th  of  April,  which  was  Sunday,  Lowber,  in  com- 
pany with  his  brother,  E.  J.  Lowber,  and  Smith,  an  employee 
of  the  firm,  proceeded  to  make  out  a  list  of  assets  to  go  to 
plaintiff'.  It  then  appeared  that  so  far  from  realizing  twenty 
thousand  dollars,  it  was  not  probable  that  Le  Roy  could  realize 
more  than  six  or  eight  thousand,  taking  both  debts  and  assets 
to  be  good ;  provided  the  mill  and  engine  employed  in  the 
manufacture  should  be  reserved  to  Lowber  as  proposed  by 
him.  It  was  then  determined  upon,  as  the  balance  of  evidence 
showed,  with  Lowber's  consent,  that  the  mill  and  engine  should 
be  added  to  the  assets  to  be  transferred  to  Le  Roy.  They 
were  accordingly  included  in  the  list  of  assets,  which  wa& 


NEW-YORK.  69 


Le  Roy  a   Lowber. 


subsequently  delivered  to  Le  Roy ;  and  on  Monday,  April  6, 
Le  Roy  was  placed  in  possession  of  the  assets,  the  mill  and 
engine  being  included. 

Thomas  O.  Le  Roy  and  Smith  then  formed  a  partnership  to 
continue  the  business,  taking  Lowber  into  their  employ  to 
manufacture  for  them.  Their  agreement  with  him  treated  the 
mill  and  engine  as  belonging  to  Lowber  ;  but  they  undertook 
to  pay  off  the  claims  upon  the  machinery  which  had  been 
assumed  by  Jacob  Le  Roy,  they  to  be  secured  for  their  advances 
by  a  mortgage  upon  the  machinery.  They  paid  off  the  claims ; 
and  Lowber  not  being  able  to  repay  them,  they  took  the  mill 
and  engine.  So  that  the  claims  were  not  paid  by  Jacob  Le 
Roy  directly,  but  out  of  the  machinery. 

Lowber  then  sued  Le  Roy  in  the  New  York  Superior  Court 
for  breach  of  his  agreement  of  4th  April,  to  pay  those  claims. 
Le  Roy  offered  the  list  of  assets  furnished  to  him  by  Lowber,  in 
evidence  to  explain  the  agreement,  and  show  that  the  machin- 
ery reserved  to  Lowber  was  not  intended  to  include  the  mill 
and  engine.  But  the  court  rejected  the  evidence,  as  no  part  of 
the  agreement,  and  incompetent  to  vary  or  explain  it,  and  ren- 
dered judgment  for  the  then  plaintiff,  Lowber. 

Le  Roy  now  commenced  this  action  in  the  Supreme  Court, 
praying  a  reformation  of  the  agreement,  and  injunction  against 
any  steps  to  enforce  the  judgment  of  the  Superior  Court.  A 
temporary  injunction  was  granted,  and  testimony  taken  before 
Lucius  Robinson,  referee,  and  the  cause  was  tried  before 
Mitchell,  J.,  at  special  term,  in  September,  1852. 

An  opinion  was  rendered  by  Mr.  Justice  Mitchell,  in  which, 
after  reviewing  the  evidence  at  length,  he  arrived  at  the  fol- 
lowing conclusions : 

That  it  was  the  original  agreement  that  plaintiff  should  pay 
the  debts  of  the  firm,  including  the  claims  upon  the  machinery 
referred  to,  and  that  defendant  should  take  the  mill  and  engine. 

That  the  subsequent  transactions  showed  that  it  was  after- 
wards independently  agreed  that  plaintiff  should  have  the  mill 
and  engine  also ;  that  he  transferred  them  to  the  firm  of 
Le  Roy  &  Smith  ;  that  they  sold  them  to  defendant,  he  assum- 
ing to  pay  the  claims  to  which  the  machinery  was  still  subject ; 
that,  as  he  had  not  means  to  do  so,  they  advanced  the  funds, 


70  ABBOTTS'  PRACTICE  REPORTS. 

Le  Roy  a.  Lowber. 

taking  the  mortgage  under  which  they  subsequently  took  the 
property. 

That  the  list  of  assets  and  the  transactions  connected  there- 
with should  have  been  offered  before  the  Superior  Court  as 
evidence  of  a  new  agreement,  substituted  for  that  originally 
made,  and  not  by  way  of  explanation  of  the  original  one. 

That  the  plaintiff's  proper  remedy  \vas,  by  motion  for  a  new 
trial  before  the  Superior  Court. 

That  plaintiff  was  not  entitled  to  have  the  agreement  of  the 
fourth  of  April  reformed  as  desired,  because  it  was  not  the  real 
intent  of  that  agreement  that  the  mill  and  engine  should  be 
transferred  to  him. 

That  the  complaint  must  be  dismissed  and  the  injunction  dis- 
solved. 

From  this  decision  the  plaintiffs  appealed  to  the  general  term. 

Hiram  Ketchum  and  C.  Tracy,  for  plaintiff. 
O.  C?  Conor,  for  defendant. 

ROOSEVELT,  J. — The  leading  object  of  this  suit  is,  to  correct 
an  alleged  mistake  in  a  certain  agreement  between  Lowber  and 
Le  Roy,  set  forth  in  the  complaint.  Lowber,  it  seems,  before 
the  new  Code,  sued  Le  Roy  for  an  alleged  breach  of  the  agree- 
ment, in  the  Superior  Court,  and  the  latter  sought  in  that  court 
and  under  the  old  system  of  practice,  to  reform  the  agreement 
by  way  of  defence,  which,  as  the  law  then  stood,  not  being 
allowed,  he  now  files  an  affirmative  bill  in  equity  for  the  sama 
purpose,  praying  also  for  a  temporary,  to  be  followed  in  the  end 
by  a  perpetual  injunction  to  stay  all  further  proceedings  at  law 
in  the  action  in  the  Superior  Court.  The  controversy  arises  out 
of  the  dissolution  of  partnership ;  Lowber  claiming  that 
Le  Roy,  by  the  agreement,  was  to  have  paid  certain  debts ;  that 
he  left  them  unpaid ;  and  that  he,  Lowber,  was  made  to  pay 
them,  and  is  entitled,  as  a  consequence,  to  be  reimbursed. 
Whereas  Le  Roy  insists  that  the  property  which  went  to  make 
the  payment,  although  Lowber's  by  the  original  letter  of  their 
agreement,  was  his,  Le  Roy's,  by  justice  of  the  case,  and  by  the 
true  ultimate  understanding  of  the  parties. 

The  articles  of  dissolution  are  in  the  form  of  letters  :  one 


NEW-YOKE.  71 


Le  Roy  a.  Lowber. 


from  Lowber,  containing  his  proposition  to  Le  Roy ;  and  the 
other  from  Le  Roy,  containing  his  answer  to  Lowber,  and  both 
dated  the  4th  April  (Saturday),  1846. 

Without  reciting  all  the  terms  of  settlement,  it  is  sufficient 
to  say,  that  under  any  interpretation,  they  were  grossly 
unjust  to  Le  Roy,  and  (himself  being  judge)  exceedingly 
liberal  to  Lowber.  Le  Roy,  who  had  put  in  most  and  taken 
out  nothing,  was  in  general  to  assume  the  debts,  taking  the 
assets  except  such  as  appertained  to  the  machinery,  while 
Lowber,  who  had  put  in  least  (and  that  in  sundries  instead  of 
cash,)  and  already  drawn  nearly  as  much  as  he  had  advanced, 
was  not  only  to  be  discharged  from  general  liability,  but  to 
keep  the  machinery  and  its  appurtenances  for  himself.  "  This 
arrangement,"  using  the  language  of  Lowber's  letter,  "  to  take 
effect  on  Monday  the  6th  instant,  when  all  books  and  assets,  will 
be  given  into  your  (Le  Roy's)  hands."  Le  Roy,  it  should  be 
remembered,  was  not  a  general  partner,  but  had  put  in  the  spe- 
cific sum  of  $25,000.  The  concern  had  been  in  operation  about 
nine  months,  and  Lowber,  as  he  said,  "  deeply,  most  deeply 
regretted,  that  they  should  have  made  such  losses  in  so  early 
a  stage  of  the  partnership."  He  nevertheless,  from  motives 
which  he,  of  course  is  estopped  from  saying  were  not  bo?ia 
fide,  on  the  same  day,  and  to  the  same  letter  which  contained 
his  proposal,  appended  a  postscript  apprizing  Le  Roy,  that 
"the  arrangement  was  upon  the  express  condition  that  all 
amounts  over  and  above  seventy  thousand  dollars,  which 
might  be  realized  out  of  the  assets,  &c.,  were  to  be  paid  to 
him,  Lowber."  This  certainly  was  a  pretty  strong  intimation, 
and  coming  from  a  general  to  a  special  partner,  almost  a 
guaranteed  assurance,  that  while  he,  Lowber,  was  to  lose 
nothing,  the  loss  of  his  associate  under  the  present  arrange- 
ment, would  and  should  be  limited  to  five  thousand  dollars. 
Even  under  this  assumption,  it  was  a  hard  bargain,  and  one 
which  Lowber  had  no  right  to  impose  upon  his  good-natured 
friend.  Indeed,  he  appears  to  have  soon  became  sensible  of 
this  himself,  for  on  the  very  same  day  he  writes  another  letter 
to  Le  Roy,  in  which  he  marks  out  for  himself  in  the  future,  a 
course  of  labor  and  self-denial :  "  until  I  have  made  up  (as  he 
says)  my  share  of  the  losses  of  Lowber  and  Le  Roy,  so  as  to 


72  ABBOTTS'  PRACTICE  REPORTS. 

Le  Roy  a.  Lowber. 

make  good  the  twenty-five  thousand  dollars  invested  by 
yourself." 

The  arrangement  thus  explained  by  Lowber,  although  insti- 
tuted on  Saturday  the  4th,  was  not  to  "  take  effect,"  it  will 
be  recollected,  until  Monday  the  6th.  It  was  inchoate,  and 
so  expressly  agreed  to  be,  during  the  interval  of  the  Sab- 
bath. That  interval,  it  appears,  the  conscience  of  some  of 
the  parties  not  being  perfectly  at  ease,  was  devoted,  and  in 
this  view  very  properly  devoted  to  self-examination;  which 
resulted  in  the  discovery  that  a  great  mistake,  and  perhaps 
a  great  wrong,  had  been  committed,  and  in  a  declaration  by 
Lowber,  that  before  the  arrangement  took  effect,  it  should  be 
rectified  and  redressed. 

The  mistake  was  one  of  fact.  The  assets,  instead  of  being 
as  he,  Lowber,  had  given  Le  Roy  to  understand,  "  over  and 
above  twenty  thousand  dollars"  without  the  machinery,  were 
found,  after  exhausting  a  large  portion  of  the  Sabbath  in  their 
detailed  investigation,  at  their  highest  valuation  to  be  under 
and  below  fifteen  thousand,  with  the  machinery.  Here  then, 
while  the  matter  was  still  in  fieri,  before  its  consummation, 
was  a  discovered  undisputed  error  of  over  $10,000.  To  rectify 
it,  required,  if  not  a  reformation  of  the  party,  at  least,  a  refor- 
mation of  the  agreement.  The  machinery,  it  was  obvious, 
consistently  with  any  decent  regard  to  fairness  or  even  honesty, 
could  not  under  those  circumstances,  be  taken  by  Lowber,  and 
the  stipulation  to  that  effect  must  be  stricken  out  or  abandoned. 

Accordingly  on  the  following  day,  the  Monday  on  which 
the  assets  were  to  be  given  into  Le  Roy's  hands,  a  schedule 
was  furnished  on  behalf  of  Lowber,  consisting  of  twelve 
separate  items  of  property  on  hand,  and  among  them  the 
"  machinery  (mill  and  engine)  $5,300."  Le  Roy,  it  seems, 
was  the  owner  of  the  premises ;  the  delivery  therefore  of  some  of 
the  articles,  accompanied  by  the  delivery  of  the  schedule,  was 
a  delivery  of  the  whole ;  and  in  my  judgment,  it  was  clearly, 
at  the  time,  intended  so  to  be,  as  well  by  Lowber  as  Le  Roy. 
The  opposite  ground  assumed  by  him  a  year  afterwards,  was 
merely  an  afterthought.  And  although  it  may  serve  to 
cancel  on  his  part,  all  claims  to  credit  for  an  honest  amend- 
ment, it  cannot,  without  the  grossest  injustice,  deprive  Le  Roy 


NEW-YORK.  73 


Le  Roy  a.  Lowber. 


of  the  small  modification,  which  Lowber's  previous  repentance, 
(afterwards  repented  of)  had  actually  conceded.  The  agree- 
ment, it  seems  to  me,  was  actually  reformed  by  the  parties 
themselves  in  its  execution.  It  "  took  effect,"  not  as  originally 
written,  but  as  reformed.  It  was  either  a  new  agreement 
superseding  and  incorporating  in  part  only,  the  letter  of  the 
previous  day,  and  made  wholly  on  the  day  of  the  consumma- 
tion and  delivery ;  or  it  was  the  correction  of  a  mistake  of 
fact  in  the  previous  agreement,  and  related  back  to  the  day  of 
its  inception.  As  a  new  substituted  agreement,  it  was  admis- 
sible, (although  partly  in  parol)  and  was  a  perfect  defence  at 
law  to  the  action  in  the  Superior  Court.  That  court,  however, 
viewed  it  in  a  different  light,  and  excluded  the  evidence  as  an 
attempt  to  vary  the  legal  import  of  a  written  instrument  by 
parol  proof,  or  to  reform  a  contract,  on  the  ground  of  mistake, 
which  as  the  practice  then  stood,  could  only  be  done  by  a 
direct  bill  in  equity.  The  decision  therefore  placed  in  effect, 
as  it  was  on  the  ground  of  a  want  of  jurisdiction  adapted  to 
the  relief  sought,  cannot  now  be  invoked,  as  an  estoppel,  with- 
out manifest  injustice.  And  on  the  whole  merits  of  the  case 
developed  as  they  have  been  in  the  present  suit,  the  judge  at 
special  term  was  himself  of  the  opinion,  in  which  we  fully 
concur,  that  Lowber,  after  the  discovery  and  acknowledgment 
of  his  mistake,  had  no  just  claim  to  the  machinery ;  that  he 
had  indubitably  and  properly  relinquished  it  to  Le  Roy  ;  and 
that  in  doing  so,  instead  of  making  a  gift,  he  had  only  done 
what  a  court  of  equity  would  then  have  compelled  him  to  do, 
and  what,  having  done  it  voluntarily,  a  court  of  equity  will 
now  compel  him  to  ratify,  and  not  permit  him  to  recall. 

Instead  therefore  of  dismissing  the  plaintiff's  complaint,  a 
decree  should  be  entered,  declaring  that  the  provision  con- 
tained in  the  agreement  of  dissolution,  that  Lowber  should 
take  the  machinery  and  its  appurtenances,  was  founded  in 
mistake,  and  should  be  stricken  out,  and  the  agreement 
reformed  accordingly,  and  that  Lowber  be  perpetually 
enjoined  from  taking  any  further  steps  in  this  action  at  law 
referred  to  in  the  pleadings,  and  that  he  pay  the  costs  of  this 
suit,  including  the  costs  of  the  appeal. 

MITCHELL,  J. — I  remain  of  the  opinion  expressed  at  the 
special  term. 


74  ABBOTTS'  PRACTICE  REPORTS. 

Westervelt  a.  Frost. 

WESTERVELT  a.  FROST. 

Supreme  Court,  First  District ;  General  Term,  November,  1854. 
INDEMNITY  BOND. — VALIDITY. 

A  bond  of  indemnity  given  to  the  sheriff,  upon  execution,  is  not  invalidated  by  the 
fact  that  it  was  given  after  levy  and  sale. 

Motion  for  a  new  trial. 

Jacob  Frost  having  recovered  a  judgment  against  J.  W. 
Post,  and  one  Crawford,  his  attorney  issued  execution  thereon, 
to  Westervelt,  then  sheriff.  The  sheriff  levied  the  execution 
upon  property  appearing  to  belong  to  the  execution  debtors, 
but  claimed  by  S.  P.  Post,  and  sold  it.  Before  paying  over 
the  proceeds,  ke  required  a  bond  of  indemnity,  which  was  given 
by  the  present  defendants,  Frost,  the  execution  creditor,  and 
Asa  Stebbins.  It  was  in  the  usual  form,  in  the  penalty  of  one 
thousand  dollars,  and  was  ante-dated,  appearing  to  have  been 
given  before  the  sale. 

S.  P.  Post  having  recovered  judgment  for  twelve  hundred 
dollars  and  upwards,  against  sheriff  Westervelt,  in  an  action 
instituted  in  the  Superior  Court,  for  the  taking  of  the  property 
in  question,  that  officer  brought  the  present  suit  upon  the 
indemnity  bond. 

The  cause  was  tried  before  Mitchell,  J.,  and  a  jury,  15 
June,  1853,  and  a  verdict  rendered  for  the  plaintiff,  for  one 
thousand  dollars.  A  motion  on  the  part  of  the  defendants,  for 
a  new  trial,  was  denied,  and  judgment  rendered  for  plaintiff. 
The  defendants  appealed. 

Lewis  and  Brown  for  defendants,  contended  that  the  bond 
was  void,  having  been  taken  by  the  sheriff  after,  and  not 
before  he  had  committed  the  acts  complained  of.  It  was  taken 
by  color  and  not  by  virtue  of  his  office. 

A.  J.  Vanderpool,  for  plaintiff.  Defendants  as  obligors,  are 
estopped  from  denying  the  facts  recited  in  the  instrument 
itself,  and  nothing  but  fraud  or  an  illegal  purpose  can  be 


NEW-YORK.  75 


Westervelt  a.  Frost. 


shown.     Hurlstone  on  Bonds,  32.    Bowman  v.  Taylor,  2  Ad.  & 
E.  278.     Lee  v.  Clark,  l.Hill,  65. 

KOOSEVELT,  J. — Frost,  it  appears,  was  a  judgment  creditor. 
His  debtors,  although  not  in  possession,  were  supposed  by  him 
to  be  the  owners  of  certain  goods.  Another  person,  however, 
of  the  name  of  Post,  claimed  the  ownership,  and  the  sheriff 
accordingly  before  completing  his  execution,  demanded  of 
Frost  a  bond  of  indemnity,  which  was  given.  Post  sued  the 
sheriff  for  trespass  in  making  a  levy  on  the  goods,  and  recov- 
ered a  judgment  for  $1228  04,  which  the  sheriff  had  to  pay, 
besides  $268  63,  the  costs  of  his  defence.  He  now  brings  this- 
action  on  the  bond  of  indemnity,  to  reimburse  his  loss. 

The  defendants  insist  that  the  bonds  under  the  circumstan- 
ces, was  unlawfully  exacted.  The  goods  it  seems  had  actually 
been  sold  by  the  sheriff  before  he  demanded  the  bond  ;  but  he 
refused  (having  received  notice  of  the  adverse  claim)  to  pay 
over  the  proceeds  without  the  bond  of  indemnity.  Frost  gave 
the  indemnity,  and  demanded  and  received  the  avails  of  the 
sale,  with  full  knowledge  of  the  claim  of  Post.  He  thus  not 
only  ratified,  but  insisted  on  the  sale  ;  and  having  adopted  the 
act  of  the  sheriff — which  it  is  not  pretended  was  other  than 
T)on()L  fide, — and  his  own  attorney  in  the  execution  having 
even  attended  the  sale,  he  was  both  legally  and  morally  bound 
to  abide  by  the  consequences  of  a  levy  and  sale  made  with  his 
approbation  and  for  his  benefit.  He  should  therefore  be 
estopped  from  denying  either  the  date  of  the  bond  which  is 
before  the  sale,  or  the  recitals  in  it,  which  are  in  conformity 
with  the  right  of  the  case. 

There  is  hardship  either  way.  It  was  a  great  seeming  folly 
on  the  one  side  to  incur  a  liability  of  $1000,  on  a  judgment  of 
less  than  $100,  and  great  seeming  wrong  on  the  other,  to 
subject  a  public  officer,  acting  in  good  faith,  to  the  undivided 
loss  of  fifteen  hundred  dollars,  for  a  commission  perhaps  not 
exceeding  fifteen. 

On  the  whole,  the  verdict  for  $1000  in'  favor  of  the  sheriff, 
(the  extent  of  the  penalty  of  the  bond)  would  seem  to  do  no 
more  than  justice  to  that  officer.  The  sale  was  no  doubt  a  most 
unfortunate  one.  Such  was  the  damaged  appearance  of  the 


76  ABBOTTS'  PKACTICE  REPORTS. 

Brady  a.  Bissell. 

goods  in  consequence  of  the  fire,  that  although  nearly  one 
hundred  persons  attended  the  auction,  scarcely  one  tenth  the 
actual  value  of  the  goods  was  realized.  Sheriff's  sales,  however, 
are  never  expected  to  come  up  to  the  standard  of  private  bar- 
gains. The  law  requires  them  to  be  made  by  public  auction, 
and  of  course  assumes  that  the  articles  levied  on,  are  to  be 
disposed  of  at  auction  prices. 
Judgment  affirmed,  with  costs. 


b 


BRADY  a.  BISSELL. 

New-  York  Superior  Court ;  Special  Term,  November,  1854. 
ARKEST. — VERIFIED  COMPLAINT. 


Where  the  summons  and  complaint  have  been  served,  and  were  before  the  judge 
upon  an  application  for  an  order  of  arrest,  based  upon  affidavit,  the  plaintiff  is 
entitled  to  refer  to  the  complaint,  if  verified,  in  support  of  the  order,  where  the 
affidavit  proves  defective. 

Certain  allegations  of  fraud  inserted  in  a  complaint,  sustained. 

Allegations  of  fraud  in  a  complaint  upon  contract,  do  not  change  the  substantial 
nature  of  the  cause  of  action,  nor  render  it  non-assignable. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

J.  Livingston^  for  plaintiff. 
G.  Schufeldt)  for  defendant. 

HOFFMAN,  J.  —  An  order  of  arrest  was  granted  on  the  6th  of 
October,  1854,  reciting  that  it  appeared  by  affidavit  that  a 
sufficient  cause  of  action  existed,  and  that  the  case  was  one  of 
those  mentioned  in  the  179th  section  of  the  Code.  The 
defendant  was  ordered  to  be  held  to  bail  in  $600.  The  affida- 
vit was  made  by  one  Charles  Jackson,  stating  that  he  had  been 
a  soldier  in  the  Mexican  war,  had  received  a  wound,  and 
became  entitled  to  a  pension  ;  that  the  defendant  had  adver- 
tised he  was  an  agent  or  attorney  to  collect  pensions,  and  that 
at  the  defendant's  solicitation,  he  (Jackson)  had  employed  him 
to  prepare  the  papers  to  obtain  it,  for  which  the  defendant  was 
to  receive  $100  ;  that  defendant  forwarded  such  papers  to 
Washington.  That  on  the  3d  of  June,  1854,  defendant,  by 


NEW-YORK.  77 


Brady  a.  Bissell. 


false  representations  of  the  difficulties  in  getting  the  pension, 
and  the  doubtfulness  of  the  plaintiff's  claim,  obtained  from  him 
a  paper  which  was  read  to  him  by  defendant,  and  purported 
to  be  an  assignment  of  all  arrears  of  pension  to  defendant,  for 
which  the  sum  of  $200  was  paid.  That  on  the  same  day.  and 
within  an  hour  after  such  interview,  Vanburgh  Livingston, 
pension  agent  of  the  United  States,  paid  to  one  Simeon  Ward, 
who  purported  to  be  the  attorney  of  plaintiff,  the  sum  of  $559 
73,  the  arrears  of  pension  due  the  plaintiff.  That  the  plaintiff 
never  authorized  Ward  to  receive  such  pension  ;  but  if  he  had 
any  letter  of  attorney,  the  signature  must  have  been  obtained 
by  fraud,  and  by  Bissell's  reading  to  him  a  different  paper. 
It  is  then  stated,  that  previous  to  the  transaction  with  defendant 
on  the  3d  of  June,  the  latter  had  obtained  positive  information 
that  the  pension  had  been  allowed ;  that  Bissell  conspired  with 
Ward  to  cheat  him,  and  that  defendant,  through  Ward,  received 
the  559  73,  and  converted  the  same  to  his  own  use.  This  affi- 
davit was  sworn  to  on  the  4th  of  October,  and  the  order  of 
arrest  was  dated  the  6th.  The  complaint  was  sworn  to  on  the 
29th  of  September.  Although  it  appears  from  the  sheriff's  cer- 
tificate that  the  summons  and  complaint  were  not  served  by 
him  with  the  order  of  arrest  and  affidavit^et  it  is  admitted 
that  such  service  had  been  made  on  the  7th  of  October.  It  is 
now  admitted  that  the  summons  and  complaint  were  before  the 
judge  when  he  granted  the  order  of  arrest. 

It  is  objected,  that  on  the  affidavit  it  does  not  appear  that  the 
plaintiff  has  any  cause  of  action ;  and  that  the  fact  of  the  com- 
plaint being  before  the  judge,  cannot  make  a  difference.  It  is 
stated  in  the  complaint  that  Jackson,  the  pensioner,  had  assigned 
all  his  interest  to  him,  the  plaintiff,  and  the  complaint  demands 
judgment  for  the  sum  of  $559  73,  and  interest;  but  on  the 
affidavit  that  does  not  appear.  The  181st  section  provides  that 
the  arrest  may  be  ordered  in  the  cases  in  which  it  is  at  all 
allowed,  upon  the  affidavit  of  the  plaintiff,  or  of  any  other 
person,  showing  a  sufficient  cause  of  action  to  exist.  It  is 
reasonable  to  construe  this  as  meaning  a  cause  of  action  to 
exist  in  the  plaintiff.  By  section  183,  the  order  may  be  made 
to  accompany  the  summons,  or  at  any  time  afterwards,  before 
judgment ;  so  that  the  arrest  would  be  void  if  made  without 


78  ABBOTTS'  PRACTICE  REPOETS. 

Brady  a.  Bissell. 

service  of  a  summons  at  the  time,  unless  the  suit  had  been 
commenced  by  a  service  previously.  By  section  184,  the 
affidavit  and  order  of  arrest  shall  be  delivered  to  the.  sheriff, 
who  shall  deliver  a  copy  to  the  defendant.  If  the  defendant 
had  not  been  served  with  the  complaint,  he  would  have  been 
arrested  upon  an  affidavit  which  did  not  show  any  title  to  sue 
him,  in  the  plaintiff.  But  the  complaint  was  served  on  the  29th 
of  September  previous,  and  is  now  shown  to  have  been  before 
the  Judge,  although  not  referred  to  in  the  order,  as  one  ground 
of  its  being  granted.  A  sworn  complaint  is  equivalent  to  an 
affidavit.  In  a  late  case,  where  the  affidavit  was  in  one  point 
defective,  but  the  defect  was  supplied  by  the  complaint,  I 
granted  the  order  reciting  that  it  appeared  by  affidavit,  and 
the  complaint  duly  sworn  to,  that  a  cause  of  action  existed,  &c. 
I  am  of  opinion  that  where  the  summons  and  complaint  has 
been  served,  and  is  laid  before  the  judge,  upon  an  application 
for  an  arrest  upon  an  affidavit,  the  plaintiff  is  entitled  to  refer 
to  it,  in  order  to  sustain  the  order  where  the  affidavit  itself  is 
defective.  In  other  words,  both  documents  may  be  treated  as 
forming  the  ground  of  the  order,  although  but  one  of  them  is 
mentioned. 

Upon  the  merits,  if  this  difficulty  is  obviated,  I  should  sustain 
the  order  of  arrest.  In  the  first  place,  the  affidavit  of  Simeon 
Ward,  produced  by  the  defendant,  states  that  Jackson  exe- 
cuted, on  the  30th  May,  nominally  to  him,  but  in  fact  for 
Manuel  de  Puga,  a  power  of  attorney  and  sale  and  assignment 
of  all  arrears  of  pension  due  on  any  pension  certificate  that 
might  have  been  issued  to  Jackson.  Under  this,  he  states  he 
received  from  Livingston  on  the  3d  of  June,  1854,  $559  48,  as 
arrears  of  pension  on  Jackson's  pension  certificate  up  to  the 
4th  of  March,  1854.  And  yet  it  appears  that  on  the  3d  of 
June,  1854,  he  swore  that  he  had  no  interest  in  the  money  to 
be  received,  either  by  any  pledge,  sale,  assignment  or  transfer, 
and  that  he  did  not  know  or  believe  that  the  same  had  been  so 
disposed  of  to  any  persons  whatever.  Again,  he  says,  he  is 
informed  and  believes,  that  the  purchase,  sale  and  assign- 
ment of  the  said  Jackson's  pension  arrearages  were  made 
by  said  defendant  on  account  of  said  Manuel  de  Puga.  So 
Bissell  says  that  Jackson  offered  to  sell  his  claim  for  $200,  to 


NEW-YORK.  T9 


The  Chemical  Bank  a.  The  Mayor  of  New- York. 


be  paid  by  De  Puga,  through  defendant,  as  his  agent,  and  for 
money  paid  and  services  rendered  by  the  defendant  as  agent, 
in  or  about  his  (Jackson's)  business ;  and  said  Jackson  did  then 
and  there  sell  and  assign  in  part  to  De  Puga,  although  nomi- 
nally to  ward  all  such  arrears  of  pension,  and  the  proposition  was 
by  the  defendant,  as  such  agent,  agreed  to,  and  a  contract 
between  the  parties  then  and  there  agreed.  It  is  remarkable 
that  Bissell  no  where  explicitly  denies  having  read  some  paper 
to  Jackson,  in  his  office,  and  getting  him  to  sign  it,  purporting 
to  transfer  his  pension  claim  ;  nor  is  there  any  explicit  or  intel- 
ligible denial  of  his  having  then  some  information  that  the 
pension  had  been  allowed.  I  think  there  is  enough  in  the  case 
to  sustain  the  arrest.  The  frame  of  the  complaint,  and  of  the 
order,  is  an  employment  of  the  defendant  as  agent  to  collect 
the  pension,  and  fraudulent  representations  and  acts  by  him, 
through  which  the  pensioner  was  induced  to  transfer  it  to  him 
for  a  small  amount,  and  hence  that  the  original  cause  of  action 
is  unaffected  by  any  such  transfer,  and  the  defendant  must  be 
adjudged  to  pay  the  amount.  If  the  complaint  had  stated  the 
employment  and  reception  of  the  money  merely,  and  the 
answer  had  set  up  an  assignment  or  transfer,  no  reply  would 
have  been  allowed  to  state  facts  to  set  it  aside.  I  see  no  objec- 
tion to  make  allegations  to  that  effect  in  the  complaint,  and 
they  will  not  change  the  real  nature  of  the  action  as  one  upon 
contract.  This  view  answers  the  objection  that  the  claim  is 
not  assignable,  and  also  the  motion  to  amend  the  complaint. 
Both  motions  are  denied,  with  five  dollars  costs  in  each 
motion. 


THE  CHEMICAL  BANK  a.  THE  MAYOR  OF  NEW- YORK. 

Supreme  Court,  First  District ;  Special  Term,  November,  1854. 
ILLEGAL  TAXATION. — DENIAL  OF  INJUNCTION. 

An  injunction  to  restrain  the  collection  of  a  tax  illegally  assessed,  cannot  be  granted. 
The  case  of  Wilson  a.  The  Mayor,  (ante  p.  4,)  cited  and  approved. 
Queer e ;  whether  an  action  for  an  injunction  would  not  be  the  most  convenient 
mode  of  calling  in  question  the  legality  of  a  tax. 

Application  for  an  injunction. 


80  ABBOTTS'  PRACTICE  REPORTS. 

The  Chemical  Bank  a.  The  Mayor  of  New-York. 

The  Chemical  Bank  applied  for  an  injunction  to  restrain 
the  collection  of  a  portion  of  a  tax  imposed  npon  their  capital. 

S.  W.  fioosevelt,  for  plaintiffs. 
B.  J.  Dillon,  for  defendant. 

MITCHELL,  J. — The  complaint  shows,  that  the  bank  has  sur- 
plus funds  beyond  its  capital,  amounting  to  $426,000,  of  which 
nearly  $180,000  consists  of  investments  in  U.  S.  stocks ;  that 
these  facts  were  duly  established  before  the  commissioner  of 
taxes  and  the  supervisor  of  the  county,  but  were  disregarded 
by  them,  and  that  the  bank  was  taxed  on  the  U.  S.  stocks  as  well 
as  on  its  other  surplus  funds.  The  complaint  then  asks  for 
leave  to  pay  the  rest  of  the  tax,  and  that  an  injunction  be 
granted  to  restrain  the  defendants  from  collecting  the  tax 
assessed  on  the  U.  S.  stocks. 

There  can  be  no  need  of  an  order  of  the  court  for  the  bank 
to  pay  or  tender  such  tax  as  it  admits  to  be  due,  and  if  more 
be  then  unlawfully  collected,  the  bank  will  have  its  remedy 
for  that  excess. 

The  other  remedy,  by  injunction,  the  defendant's  counsel 
insist  cannot  be  granted.  Judge  "Woodruff,  of  the  Common 
Pleas,  has,  in  an  elaborate  opinion,  ably  explained  the  deci- 
sions on  the  subject.  (Wilson  v.  Mayor  of  N.  Y.)  The  cases 
of  Meserole  v.  Brooklyn,  26  Wend.  132,  (reversing  8  Paige, 
198 ;)  Van  Doren  v.  Mayor  of  K  Y.,  9  Paige,  388 ;  Living- 
ston v.  Hollenbeck,  4  Barb.  S.  C.  S.,  10 ;  and  Bowker  v. 
Brooklyn,  7  How.  Pr.  JR.  198,  fully  sustain  the  defendant's 
counsel,  as  the  law  stood  before  the  Code  was  adopted ;  and 
the  last  case  adopts  the  same  rule  under  the  Code.  Justice 
Strong,  who  decided  the  last  case,  sums  up  his  reasoning  by 
saying,  in  substance,  that  a  court  of  law  only  provides  a 
redress  for  a  wrong  after  it  is  committed :  a  court  of  equity 
grants  its  preventive  relief  before  the  wrong  is  done,  but 
under  certain  limits,  which  exclude  a  case  like  this ;  that  a 
court,  in  which  the  functions  of  both  are  joined,  (as  is  the  case 
now,  under  the  Code,)  cannot  extend  its  power  beyond  what 
was  formerly  possessed  by  one  court  or  the  other  previous  to 
the  junction  of  the  powers  of  both  courts  in  one. 


NEW-YOKE.  81 


The  Chemical  Bank  a..  The  Mayor  of  New- York. 


The  Code  allows  an  injunction  when  it  appears  by  the  com- 
plaint that  the  plaintiff  is  entitled  to  the  relief  demanded,  and 
snch  relief  or  part  of  it,  consists  in  restraining  the  commission 
or  continuation  of  an  act,  the  commission  or  continuation  of 
which  during  the  litigation,  would  produce  injury  to  the 
plaintiffs.  (Code,  §  219.)  It  is  not  when  the  plaintiff  is  entitled 
to  any  relief,  but  to  the  relief  demanded.  If,  by  the  law,  as 
it  stood  before,  the  plaintiff  had  no  right  to  the  relief  sought 
in  a  suit  in  his  own  name,  he  has  none  now ;: — as  the  section 
does  not  profess  to  extend  the  relief  which  the  plaintiff 
might  claim  in  such  a  suit.  If  the  only  final  relief  which 
he  demands  is  a  judgment  for  an  injunction,  then  he  must 
show  that  by  the  law  as  it  stood  before,  he  was  entitled  to 
that  relief.  If  the  Code  allowed  the  injunction  wherever  the 
plaintiff  was  entitled  to  any  relief,  either  in  his  own  name, 
or  as  relator  in  the  name  of  the  people ;  then  if  a  mandamus 
or  certiorari  would  lie,  the  preliminary  injunction  might  be 
allowable,  but  such  is  not  its  language. 

If  the  plaintiff  will  have  a  right  of  action  against  the  col- 
lector or  supervisors,  after  the  tax  shall  be  collected,  that  does 
not  entitle  him  to  the  injunction,  as  in  that  case  his  cause  of 
action  will  not  accrue  until  the  money  shall  be  collected. 

At  the  same  time,  it  is  very  evident  that  there  could  be  no 
simpler  mode  of  settling  such  questions  than  by  an  action  for 
an  injunction.  It  brings  up  the  precise  merits  of  the  case,  as 
applicable  to  the  individual  aggressor  alone,  and  does  not 
involve  in  the  suit  the  other  tax-payers ;  it  is  subject  to  the 
equitable  control  of  the  court,  and  in  that  has  a  great  advan- 
tage over  an  action  brought  for  a  trespass,  when  in  some  cases 
the  whole  assessment  might  be  declared  void,  and  he  who  was 
liable  to  pay  a  part  be  discharged  from  paying  anything  on 
account  of  an  informality  in  the  proceedings.  But  the  strict 
law  seems  to  favor  the  objection  made  by  the  defendants,  and 
the  motion  for  an  injunction  is  denied,  without  costs. 


82  ABBOTTS'  PRACTICE  REPORTS. 


Pinckney  a.  Wallace. 


PINCKNEY  a.  WALLACE. 
New  York  Common  Pleas  ;  General  Term,  November ',  1854. 

FORECLOSURE  OF  MORTGAGE. — POWERS  OF  SURVIVING  PARTNER. — 
MISJOINDER  OF  DEFENDANTS. 

A  surviving  partner  has  the  power  to  assign  any  chose  in  action,  e.  g.  a  bond  and 

mortgage  belonging  to  the  late  firm. 
A  defendant  properly  joined  cannot  demur  to  the  complaint  for  the  misjoinder  of 

another  defendant. 

Demurrer  to"  complaint. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court.  We 
are  not  informed  of  the  names  of  the  respective  counsel. 

INGRAHAM,  J. — From  the  complaint  it  appears  that  the  action 
is  to  foreclose  a  mortgage  given  to  secure  a  bond  payable  to 
Pierce  and  Peck  as  co-partners ;  that  Peck  is  dead,  and  Pierce, 
as  surviving  partner,  assigned  the  claim  to  Pinckney. 

The  defendant  demurs  to  the  complaint  for  two  reasons. 

First  For  defect  of  parties  in  omitting  the  representatives 
of  Peck. 

Second.  For  error  in  making  Mary  Wallace  a  .party  without 
showing  any  right  to  make  her  a  party. 

I.  The  defect  of  parties  can  only  be  taken  advantage  of  by 
demurrer  when  it  appears  on  the  face  of  the  complaint. 

In  this  case  no  such  defect  appears.  The  bond  is  averred  to 
be  payable  to  Pierce  and  Peck  as  co-partners,  and  upon  the 
death  of  either,  the  title  to  the  bond  vests  in  the  surviving 
partner.  He  has  a  right  to  collect  all  debts  due  to  the  firm, 
and  to  sell  the  property.  His  responsibility  to  the  representa- 
tives of  the  deceased  partner  only  exists  after  the  partnership 
affairs  are  settled. 

Having  the  right  to  collect  and  dispose  of  the  property,  he 
has  the  power  for  that  purpose  of  assigning  any  chose  in  action 
belonging  to  the  estate. 

There  is  nothing  on  the  face  of  the  complaint  to  warrant  the 


NEW-YORK.  83 


Tuffls  a.  Braisted. 


•conclusion  that  the  representatives  of  Peck  should  be  made 
parties  to  this  action,  and  the  demurrer  cannot  be  sustained  on 
that  ground. 

If  in  fact  this  bond  and  mortgage  did  not  belong  to  the 
partnership,  such  fact  may  be  shown  upon  the  trial,  and  the 
plaintiff  must  then  fail ;  but  no  such  fact  appears  on  the  face 
of  the  complaint. 

II.  As  to  the  second  cause  of  demurrer,  it  is  sufficient  to  say 
that  a  misjoinder  of  defendants  is  no  ground  of  demurrer. 

The  complaint,  however,  must  show  that  any  person  named 
as  defendant  has,  or  claims,  an  interest  in  the  matter  in  contro- 
versy, or  is  a  necessary  party  to  a  complete  determination  of 
the  questions  involved  in  it. 

It  is  not  averred  that  Mary  Wallace  is  the  wife  of  William 
Wallace.  If  it  were  so,  that  would  show  sufficient  cause  for 
making  her  a  party.  Even  without  that  averment,  the  alle- 
gation that  she  has  or  claims  an  interest  in  the  mortgaged 
premises,  is  sufficient  to  warrant  making  her  a  defendant.  She 
is  not  under  any  necessity  to  appear,  as  no  claim  is  made 
against  her,  and  she  can  incur  no  liability  by  her  non-appearance. 

There  would  be  much  more  cause  of  complaint  if  she  had 
been  omitted,  than  the  defendant  can  have  to  her  being  made 
a  party. 

Judgment  for  plaintiff  on  demurrer. 


TUFFTS  a.  BRAISTED. 

New  York  Superior  Court ;  General  Term,  November,  1854. 
JUDGMENT. — ACTION  BY  ASSIGNEE. 

Section  71  of  the  Code,  does  not  prohibit  a  bona  fide  assignee  of  a  judgment  from 
bringing  an  action  upon  it,  without  first  obtaining  leave  of  the  court. 

Appeal  from  an  order  dismissing  summons  and  complaint. 

'The  plaintiff,  as  assignee,  brought  an  action  upon  a  judg- 
ment recovered  in  this  court,  April  5,  1852,  by  A.  D.  Sage, 
against  Braisted  and  Averill,  the  defendants.  The  defendants 


84:  ABBOTTS'  PRACTICE  REPORTS. 

TufTts  a.  Braisted. 

moved  to  dismiss  the  summons  and  complaint  upon  the  ground 
that  the  court  had  not  granted  leave  to  the  plaintiff  to  bring 
the  action,  as  required  by  section  71  of  the  Code.  The  motion 
was  granted,  and  the  plaintiff  appealed  to  the  general  term. 

BreckenridgC)  for  plaintiff. 
H.  W.  Genet,  for  defendants. 

OAKLEY,  C.  J. — Prior  to  the  Code,  a  plaintiff,  in  a  judg- 
ment, could  bring  an  action  upon  it,  as  a  matter  of  course,  and 
of  strict  right.  An  assignee  of  a  judgment  could  do  the  same, 
only  he  was  obliged  to  sue  in  the  name  of  the  assignor.  The 
only  way  in  which  a  judgment-debtor  could  arrest  such  a  pro- 
ceeding, was  by  paying  the  judgment. 

The  Code  not  only  allows,  but  requires  the  assignee  of  any 
demand,  to  prosecute  any  action  that  may  be  brought  upon  it, 
in  his  own  name,  (§111.) 

Omitting  what  is  said  of  judgments  in  justices'  courts,  §  71 
declares  that  "  no  action  shall  be  brought  upon  a  judgment  ren- 
dered in  any  court  of  this  State,  between  the  same  parties, 
without  leave  of  the  court,  on  good  cause  shown,  on  notice  to 
the  adverse  party."  Whether  the  order  appealed  from  is  erro- 
neous, depends  upon  the  construction  that  should  be  put  on  the 
words  "  between  the  same  parties." 

We  think  the  natural  meaning  of  the  words  is,  that  no  party 
in  whose  favor  a  judgment  is  rendered,  shall  bring  an  action 
upon  it  against  those  against  whom  it  is  rendered,  without 
leave  of  the  court.  The  Code  did  not  intend  to  prohibit  the 
bringing  of  an  action  on  a  judgment  by  any  and  every  person, 
without  the  express  permission  of  the  court.  If  it  had,  it 
would  have  omitted  the  words  "  between  the  same  parties." 
This  is  not  nominally,  nor  in  substance,  an  action  between  the 
same  parties.  The  plaintiff  was  not  interested  in,  nor  privy  to, 
the  recovery  of  the  judgment.  He  has  become  the  owner  of 
it,  by  purchase  and  assignment. 

We  suppose  the  object  of  the  statute  was  to  prohibit  suing 
upon  a  judgment,  when  there  could  be  no  motive  for  it,  except 
to  accumulate  costs.  But  the  reason  of  the  statute,  if  that  was 
the  sole  reason  for  it,  would  seem  to  apply  with  as  much  force 
to  the  assignee  as  to  the  assignor  of  a  judgment. 


NEW-YOKE.  85 


Mason  a.  Whitely. 


We  are  not  aware,  however,  of  any  complaints,  that  suits 
have  brought,  with  such  motives,  at  the  instance  of  the 
assignees  of  judgments.  The  advantages  to  an  assignee,  in 
recovering  a  judgment  in  his  own  name,  are  obvious.  Such  a 
recovery  furnishes  record-evidence,  that  no  equities  existed 
between  the  assignor  and  the  judgment-debtor,  at  the  time  of 
the  assignment,  which  entitle  the  latter  to  exemption  from 
praying  the  debt.  It  puts  it  out  of  the  power  of  the  assignor 
to  discharge  the  judgment,  or  affect  the  rights  or  remedies,  of 
his  assignee.  The  latter  is  not  subjected  to  the  necessity  of 
relying  on  the  uncertainty  of  human  memory,  to  prove  notice 
to  the  judgment-debtors  of  the  fact  of  the  assignment,  nor  of 
the  time  when  such  notice  was  given.  We  do  not  feel  at 
liberty  to  extend,  by  construction  under  such  circumstances, 
the  common  and  natural  meaning  of  the  words,  "  between  the 
same  parties."  As  the  Code  only  prohibits  an  action  between 
such  parties,  we  do  not  feel  authorized  to  hold  that  parties,  not 
prohibited  by  that  section  from  bringing  an  action,  shall  not 
bring  one.  Under  this  view  of  that  section  of  the  Code,  the 
order  appealed  from  must  be  reversed,  but  without  costs. 


MASON  a.  WHITELY. 

New  York  Superior  Court ;  Special  Term,  December,  1854. 
AMENDMENT  OF  COMPLAINT. — NEW  COUNTS. 

On  amending  a  complaint  when  it  is  done  under  §  172  of  the  Code,  as  a  matter  of 
course  and  of  right,  a  plaintiff  may  add  a  new  cause  of  action. 

The  only  restrictions  imposed  on  a  plaintiff  are,  that  he  shall  not  amend  for  the  pur- 
poses of  delay,  nor  to  prevent  a  trial  at  a  term  for  which  the  action  is  or  may  be 
noticed  to  be  tried ;  and  that  the  cause  of  action  added  be  one  that  may  properly 
be  united  with  the  one  contained  in  the  original  complaint. 

Motion  to  strike  out  an  amended  complaint. 

The  original  complaint  in  this  action  was  by  husband  and 
wife,  for  an  assault  and  battery,  alleged  to  have  been  com- 
mitted by  defendant  upon  the  wife ;  and  was  drawn  substantially 
in  the  common  form.  The  defendant  answered  without  await- 
ing the  expiration  of  the  twenty  days,  making  a  general  denial. 

Subsequently,  and  within  twenty  days  from  the  service  of 
the  original  complaint,  the  plaintiffs  served  an  amended  com- 


86  ABBOTTS'  PRACTICE  KEPOKTS. 

Mason  a.  Whitely. 

plaint.  The  amendment  consisted  in  the  addition  of  a  second 
count,  setting  forth  that  at  the  time  and  place  of  the  alleged 
assault  and  battery  averred  in  the  original  complaint,  and 
repeated  in  the  amended  one,  the  defendant  also  unlawfully 
restrained  the  female  plaintiff  of  her  liberty,  &c. 

The  defendant  moved  at  special  term  before  the  Ch.  Justice,, 
to  strike  out  the  amended  complaint,  upon  the  ground  that  the 
amendment  amounted  to  the  addition  of  a  new  and  distinct 
cause  of  action. 

B.  Skaats,  in  support  of  the  motion,  cited  Hollister  a.  Living- 
ston, 9  Row.  Pr.  B.  140. 

B.  V.  Abbott,  in  opposition.  It  has  been  understood  in  this 
court,  that  the  plaintiff  may  thus  amend,  as  of  course.  (Penny 
v.  Van  Cleef,  1  Hall,  165.  Magrath  v.  Van  Wyck,  2  Sandf. 
651.  Jeroliman  v.  Cohen,  1  Duer,  629.)  This  practice  'is 
upon  the  whole  supported  by  the  practice  of  the  Supreme 
Court,  as  adopted  since  the  Code.  1  Mon.  Pr.  2  ed.  371. 
Getty  v.  Hudson  River  R.  R.  Co.  6  How.  Pr.  R.  269. 

OAKLEY,  CH.  J. — The  complaint  was  amended  under  §  172 
of  the  Code.  The  motion  is  made  on  the  ground,  that  under 
that  section  a  plaintiff  cannot  amend,  by  adding  a  new  and 
distinct  cause  of  action.  Thence  is  no  such  restriction  imposed 
by  that  section  of  the  Code.  The  only  limitation  upon  the 
right  to  amend,  on  the  nature  of  the  amendments  to  be  made 
is,  that  it  shall  not  be  done  for  the  purpose  of  delay,  nor 
under  such  circumstances  as  to  prevent  a  trial  at  a  "  term  for 
which  the  cause  is,  or  may,  be  noticed."  Neither  of  these 
objections  are  alleged  to  exist.  Under  the  rules  and  practice 
of  the  courts,  as  they  existed  prior  to  the  Code,  a  party,  on 
amending  as  a  matter  of  course,  could  add  new  counts  or  pleas. 

Supreme  Court.     Rules  of  1829.     Nos.  20  and  21. 

Superior  Court,     Rules  of  1834.    .No.  33. 

New  York  Com.  Pleas.    Rules  of  1834.     Nos.  28  and  29. 

The  Code  allows,  on  an  amendment  made  under  §  172,  the 
insertion  of  any  new  causes  of  action  that  can  properly  be- 
united  in  a  complaint. 

The  motion  must  be  denied. 

(J)uEB,  CAMPBELL  and  BOSWOKTH,  J.  J.,  concurred.) 


NEW-YORK.  8T 


Dwindle  a.  Howland. 


DWINELLE  a.  HOWLAND. 

Supreme  Court  Circuit,  New  York  County  ;  December,  1854. 
TESTIMONY  TAKEN  UPON  COMMISSION. — PROPER  MODE  OF  RETURN. 

The  power  to  issue  a  commission  to  examine  witnesses  abroad,  is  an  innovation 
upon  the  common  law,  and  should  be  strictly  exercised. 

Where  a  commission  is  returned  by  an  agent,  his  affidavit,  as  prescribed  by  statute, 
that  he  received  it  from  the  hands  of  the  commissioners,  and  that  it  has  not  been 
opened  or  altered  since  he  received  it,  is  indispensable,  unless  waived  by  consent. 

A  commission  returned  by  express  and  unaccompanied  by  such  affidavit,  held,  inad- 
missible ;  although  so  returned  pursuant  to  the  order  awarding  the  commission. 

This  was  a  ruling  at  circuit,  rejecting  certain  evidence. 

The  plaintiff,  ou  the  22d  of  December,  1853,  applied  to  the 
special  term  of  this  court,  for  leave  to  issue  a  commission  in 
this  action  on  the  part  of  the  plaintiff,  to  be  directed  to  certain 
commissioners  in  Sun  Francisco  in  California,  authorizing 
them  to  examine  on  oath  upon  interrogatories  and  cross  inter- 
rogatories, certain  witnesses  on  behalf  of  the  plaintiff,  residing 
in  California.  The  court  made  an  order  awarding  the  com- 
mission. 

This  order  provided  that  the  commission  and  the  return 
thereto  when  taken,  might  be  transmitted  either  by  mail,  or 
~by  either  of  the  Express  Companies  doing  business  between 
New  York  and  San  Francisco,  and  that  the  return  to  such 
commission,  be  directed  to  Richard  B.  Connolly,  clerk  of  the 
City  and  County  of  New  York,  at  the  City  of  New  York. 

The  commission  was  not  returned  by  mail,  but  had  an 
endorsement  upon  it,  in  the  following  words  : 

"  Deposited  in  the  letter  bag  of  Adams  &  Co.  Express,  at 
San  Francisco,  this  31st  of  May,  1854,  by  me, 

"  B.  F.  VOORHEES,  Commissioner." 

On  the  trial,  the  plaintiff  offered  to  read  in  evidence  certain 
depositions  annexed  to  the  commission. 

The  defendants  objected  to  the  reading  of  the  depositions  in 
evidence,  on  the  ground  that  there  was  no  affidavit  of  any 
agent,  to  whom  the  commission  and  return  were  delivered  in 
San  Francisco,  showing  that  the  agent  received  the  commission 
and  return  from  the  commissioners,  and  that  tlie  same  had  not 


88  ABBOTTS'  PRACTICE  EEPORTS. 

Dwindle  a.  Rowland. 

been  opened  or  altered,  since  he  so  received  it  •  and  because  it 
did  not  appear  how,  or  in  what  manner  the  commission  and 
return  had  been  transmitted  from  California  to  the  clerk  of 
this  court  in  New  York. 

The  plaintiff,  for  the  purpose  of  obviating  the  objection, 
offered  to  prove  by  a  witness,  that  the  uniform  course  of 
business  on  the  part  of  Adams  &  Co.,  and  all  other  Express 
Companies  doing  business  between  San  Francisco  and  New 
York,  is,  that  letters  are  deposited  at  San  Francisco,  by  the 
parties  sending  them,  in  the  letter  bags  of  the  Express  Com- 
panies ;  that  the  letters  thus  deposited  are  taken  care  of  by 
the  office  agents  at  San  Francisco,  and  that  when  the  steamers 
are  ready  to  sail,  the  letter  bag  is  closed,  and  put  in  charge  of 
a  messenger,  not  one  of  the  office  agents  who  receives  letters ; 
that  such  messenger  generally  accompanies  the  bags  contain- 
ing the  letters  to  New  York,  but  some  times  delivers  them  to 
another  messenger  at  Panama  or  Aspinwall ;  that  the  bags 
are  brought  to  the  office  of  Adams  &  Co.,  in  New  York, 
when  the  duty  of  the  messenger  is  at  an  end ;  that  then  the 
uniform  course  of  business  is,  that  some  other  agent  or  clerk 
of  the  Express  Company,  delivers  the  letters  to  the  persons  to 
whom  they  are  addressed  ;  that  the  firm  of  Adams  &  Co.,  is 
composed  of  three  persons,  one  residing  in  San  Francisco,  one 
in  New  York,  and  one  in  Boston,  and  that  by  the  uniform 
course  of  business,  neither  of  the  partners  attend  to  the  recep- 
tion or  delivery  of  letters  sent  by  their  Express.  The  defend- 
ants objected  to  the  testimony,  and  the  judge  sustained  the 
objection,  and  excluded  it,  and  held  that  the  depositions  could 
not  be  read  in  evidence. 

The  plaintiff  was  permitted  to  withdraw  a  juror. 

The  reasons  for  rejecting  the  evidence  were  afterwards 
reduced  to  writing  by  Mr.  Justice  Clerke. 

C.  P.  JKirTdand,  for  plaintiff. 
N.  Chase,  for  defendants. 

CLERKE,  J. — I.  At  common  law,  no  commission  to  examine 
witnesses  abroad  on  interrogatories  could  issue  without  consent ; 
although  a  court  of  equity  could,  in  aid  of  an  action  in  a 
common  law-court,  compel  an  obstinate  party  to  consent. 


NEW-YOKE.  89 


Dwinelle  a.  Rowland. 


In  England,  the  common  law-courts  had  no  general  power  to 
issue  commissions,  until  the  Act  passed  as  recently  as  the  reign 
of  William  IV.  (1  W.  IV.,  C.  22). 

Our  courts  have  possessed  this  power  for  more  than  sixty- 
years  ;  but,  it  was  always  considered  an  innovation,  which 
should  be  exactly  dealt  with,  as  a  departure  from  a  mode  of 
presenting  evidence,  which  has  ever  been  justly  considered  one 
of  the  best  safeguards  in  the  trial  of  facts. 

The  presence  of  the  witness  at  the  trial,  and  his  oral  examin- 
ation before  the  jury,  is,  under  our  system,  a  favorite  and 
almost  indispensable  requisite ;  and,  among  numerous  other 
usages,  distinguishes  the  common  from  the  civil  law.  Any 
statute  encroaching  upon  this  usage,  like  any  other  in  deroga- 
tion of  the  practice  of  the  common  law,  must  be  strictly 
observed. 

IL  The  Rev.  Statutes  (2  v.  394)  prescribe  only  two  methods 
of  returning  a  commission :  either  1,  by  depositing  it  in  the 
nearest  post-office  ;  or  2,  returning  it  by  an  agent  of  the  party 
who  has  sued  out  the  order  or  writ,  according  to  the  direction 
made  by  the  judge  or  court — no  other  mode  is  contemplated. 
In  this  case,  it  was  provided  that  the  commission  might  be 
returned  either  by  mail,  or  by  an  agent, — an  express  company. 
Section  25  of  the  statute  provides,  that,  if  the  packet  be  deliv- 
ered to  an  agent,  he,  on  delivering  it  to  the  clerk  or  judge,  shall 
make  an  affidavit,  that  he  received  the  same  from  the  hands  of 
one  of  the  commissioners,  and  that  it  has  not  been  opened  or 
altered  since  he  so  received  it.  Indeed,  the  whole  article  is 
very  exact  and  minute  in  its  precautions  to  prevent  abuse,  and 
to  insure  the  genuineness  of  the  evidence.  A  rigorous  com- 
pliance with  its  provisions  was  evidently  intended,  particularly 
in  regard  to  the  return  of  the  commission.  The  affidavit,  that 
it  has  not  been  opened  or  altered,  is  indispensable,  unless 
expressly  dispensed  with  by  the  written  consent  of  the  adverse 
party.  It  is  no  answer  to  say,  that,  in  this  case,  after  the  order 
was  so  made  at  special  term,  allowing  the  commission,  and 
directing  the  mode  in  which  it  should  be  returned,  both  parties 
signed  a  similar  direction  in  the  body  of  the  commission.  At 
the  most,  the  adverse  party,  in  doing  this,  consented  to  the 
appointment  of  the  agent  designated  by  the  party  suing  it  out ; 


90  ABBOTTS'  PEACTICE  REPORTS. 

In  the  Application  of  Clark. 

— it  was  no  waiver  of  the  provisions  of  the  law  requiring 
full  proof  of  the  authenticity  of  the  evidence.  Nor  is  it  any 
answer  to  say,  that  according  to  the  practice  of  the  express 
companies  this  provision  could  not  be  complied  with,  inasmuch 
as  no  one  person  employed  in  any  of  those  companies  accom- 
panied the  express  the  whole  route.  If  the  party  suing  out  the 
commission  knew  this,  he  ought  to  have  communicated  it  to  the 
other  party,  if  he  thought  this  mode  of  transmission  was 
preferable  to  the  mail ;  if  the  other  party  refused  to  dispense 
with  the  affidavit  verifying  the  return,  the  only  course  left  was, 
to  have  the  return  made  by  mail. 

III.  It  does  not  appear  that  anything  was  suggested  to  the 
court,  or  to  any  of  the  parties,  that  a  compliance  with  the  statute 
was  not  practicable.  At  all  events,  the  court  cannot  dispense 
with  this  requirement,  without  consent.  The  depositions 
cannot  be  read. 


IN  THE  APPLICATION  OF  CLARK. 

Supreme  Court  Circuit,  Duchess  County,  December,  1854. 

NATURALIZATION — DUTIES  OF  THE  COURT. 

The  powers  conferred  by  the  General  Government  upon  the  State  Courts  to  admit 
aliens  to  citizenship,  cannot  be  delegated  to  the  clerks  of  those  courts.  They 
must  be  exercised  by  the  courts  themselves,  upon  a  judicial  examination  of 
each  case. 

Application  for  admission  to  citizenship. 

The  facts  sufficiently  appear  in  the  opinion  of  the  court. 

DEAN,  J. — The  petitioner,  a  native  of  Scotland,  applied  to 
the  clerk  of  this  court  for  admission  as  a  citizen.  A  number 
of  other  aliens  made  a  like  application.  The  clerk  was  pro- 
ceeding to  administer  the  formal  oath  to  the  witnesses  of  the 
respective  applicants  when  the  subject  was  brought  to  my 
notice,  and  on  inquiry  I  learned  that  the  practice  had,  for 
many  years,  been  for  the  clerk  to  receive  and  pass  upon  all 
applications  for  naturalization,  and  grant  certificates  without 


NEW-YORK.  91 


In  the  Application  of  Clark. 


consulting  the  court,  and  that  the  proof  on  which  aliens  were 
admitted  to  citizenship,  did  not  ordinarily  meet  any  one  of  the 
requirements  of  the  statute.  On  this  state  of  facts  I  deemed 
it  my  duty  to  forbid  the  clerk  from  entertaining  any  applica- 
tions of  this  nature,  directing  that  all  should  be  made  to  the 
court.  The  application  was  then  made  to  the  court,  and  on 
examination  I  found  that  neither  Clark,  or  any  one  of  the 
other  candidates  for  citizenship,  could  furnish  proof  of  con- 
tinuous residence  within  the  United  States,  to  exceed  two  or 
three  years,  and  that  each  of  the  applicants  was  unprepared 
with  any  proof  as  to  his  ^conduct  or  character,  during  even 
that  brief  period.  As  this  decision  must  change  the  practice 
in  naturalization  cases  in  this  court,  and  affect  it  in  others,  it 
is  due  to  the  importance  of  the  subject,  that  the  reasons  on 
which  it  is  founded  should  be  given. 

There  are  probably  no  laws  of  a  public  character  so  imper- 
fectly understood  and  so  badly  administered  as  those  for  the 
naturalization  of  foreigners.  Among  the  powers  which  were 
by  the  States  delegated  to  Congress  was  the  one  "  to  establish 
a  uniform  rule  of  naturalization."  This  power  was  exercised 
the  year  after  the  formation  of  the  government  by  an  act 
approved  by  Washington,  March  26,  1790.  Again  in  1795 
and  in  1798,  in  an  act  approved  by  President  Adams.  All 
these  acts  were  repealed  in  1802,  during  the  presidency  of 
Jefferson,  when  the  act  was  passed,  which,  though  it  has  often 
been  modified  in  unimportant  particulars,  and  in  a  few  instances 
materially  changed,  is  the  one  now  in  force,  and  under  which 
the  courts  derive  their  jurisdiction  to  act  in  the  premises.  One 
reason  why  these  laws  are  so  imperfectly  understood  and  so 
badly  administered,  is,  that  the  statutes  of  the  United  States 
have  little  application  to  the  affairs  of  the  States,  and  the  best 
lawyers  of  the  several  States  are  usually  ignorant  of  their 
provisions.  By  the  laws  to  establish  a  uniform  rule  of  natu- 
ralization, any  court  in  the  State  possessing  common  law 
jurisdiction,  a  seal  and  a  clerk,  can  exercise  the  powers  of 
admitting  aliens  to  citizenship.  The  judges  of  these  State 
courts,  ordinarily  familiar  only  with  the  laws  of  their  own 
State,  have  their  time  occupied  by  attending  to  what  they 
regard  as  their  judicial  duties,  and  permit,  if  they  do  not  order, 


92  ABBOTTS'  ^PRACTICE  REPORTS. 

In  the  Application  of  Clark. 

applications  for  naturalization  to  be  made  to  the  clerk,  whose 
knowledge  of  the  laws  is  derived  from  the  printed  blanks 
which  he  fills  up  and  signs,  on  receiving  his  fees.  By  this 
practice,  which,  on  inquiry,  I  find  is  general,  if  not  universal, 
certificates  of  citizenship  are  issued  indiscriminately  and  ille- 
gally, without  a  compliance  on  the  part  of  the  alien  with  any 
of  the  requirements  of  the  statutes,  except  taking  the  oath  of 
allegiance. 

The  first  section  of  the  act  of  1802,  to  which  I  have  referred, 
contains  the  following  provision  : 

"  Any  alien,  being  a  free  white  person,  may  be  admitted  to 
become  a  citizen  of  the  United  States,  or  any  of  them,  on  the 
following  conditions,  and  not  otherwise : 

"  1st.  That  he  shall  have  declared,  on  oath  or  affirmation, 
before  the  supreme,  superior,  district,  or  circuit  court  of  some 
one  of  the  States,  or  of  the  territorial  districts  of  the  United 
States,  or  a  circuit  or  district  court  of  the  United  States,  three 
years,  (this,  by  amendment,  is  now  two  years,)  at  least  before 
his  admission,  that  it  was,  bonafide,  his  intention  to  become  a 
citizen  of  the  United  States,  and  to  renounce  forever  all  alle- 
giance and  fidelity  to  any  foreign  prince,  potentate,  state,  or 
sovereignty  whatever,  and  particularly,  by  name,  the  prince, 
potentate,  state,  or  sovereignty  whereof  such  alien  may,  at  the 
time,  be  a  citizen  or  subject. 

"  2dly.  That  he  shall,  at  the  time  of  his  application  to  be 
admitted,  declare,  on  oath  or  affirmation,  before  some  one  of 
the  courts  aforesaid,  that  he  will  support  the  constitution  of 
the  United  States,  and  that  he  doth  absolutely  and  entirely 
renounce  and  abjure  all  allegiance  and  fidelity  to  every  foreign 
prince,  potentate,  state,  or  sovereignty  whatever,  and  particu- 
larly, by  name,  the  prince,  potentate,  state,  or  sovereignty 
whereof  he  was  before  a  citizen  or  subject ;  which  proceed- 
ings, shall  be  recorded  by  the  clerk  of  the  court. 

"  3dly.  That  the  court  admitting  such  alien  shall  be  satisfied 
that  he  has  resided  within  the  United  States  five  years  at  least, 
and  within  the  State  or  Territory  where  such  court  is  at  the 
time  held,  one  year  at  least ;  and  it  shall  further  appear  to 
their  satisfaction,  that  during  that  time  he  has  behaved  as  a 
man  of  a  good  moral  character,  attached  to  the  principles  of  the 


NEW-YORK.  93 


In  the  Application  of  Clark. 


constitution  of  the  United  States,  and  well-disposed  to  the 
good  order  and  happiness  of  the  same :  Provided,  That  the 
oath  of  the  applicant  shall,  in  no  case,  be  allowed  to  prove  his 
residence." 

It  will  be  seen  that  the  court,  and  not  the  clerk  of  the  court? 
is  to  admit  the  alien.  And  that,  as  the  court,  before  admitting 
him,  is  to  be  satisfied  of  certain  facts,  it  follows  that  the  powers 
conferred  upon  the  courts  are  judicial  and  not  ministerial  or 
clerical,  and  consequently  that  these  powers  cannot  be  dele- 
gated to  the  clerks,  but  must  be  exercised  by  the  court,  and 
their  exercise  requires  an  examination  into  each  case  sufficient 
to  satisfy  the  court  of  the  following  facts  : 

1.  Five  years  continuous  residence  of  the  applicant  within 
the  United  States,  and  one  year  of  like  residence  within  the 
State  or  territory  where  the  court  to  which  the  application  is 
made,  is  held. 

2.  That  the  applicant  during  the  five  years  has  conducted 
himself  as  a  person  of  good  moral  character. 

3.  That  the  applicant  is  in  principle  attached  to  and  well 
disposed  towards  the  constitution  of  the  United  States. 

The  "continuous"  residence  would  not  perhaps  be  necessary 
from  the  language  of  the  section  I  have  quoted  ;  but  an 
amendment,  approved  March  3,  1813,  by  President  Madison, 
provides : — 

"  That  no  person  who  shall  arrive  in  the  United  States  from 
and  after  the  time  when  this  act  shall  take  effect,  shall  be 
admitted  to  become  a  citizen  of  the  United  States,  who  shall 
not  for  the  continued  term  of  five  years  next  preceding  his 
admission,  as  aforesaid,  have  resided  within  the  United  States, 
without  being  at  any  time  during  the  said  five  years  out  of  the 
territory  of  the  United  States." 

This  amendment  is  now  in  force,  except  the  words  "  without 
being  at  any  time  during  the  said  five  years  out  of  the  terri- 
tory of  the  United  States."  These  words  were,  in  1848,  in  "  an 
act  for  the  regulation  of  seamen  on  board  the  public  and 
private  vessels  of  the  United  States,"  struck  from  the  section. 
The  object  of  the  amendment  of  1848  was  to  allow  seamen 
who  were  actually  engaged  on  any  of  the  public  or  private 
vessels  of  the  United  States,  and  thus  in  their  business  were 


94:  ABBOTTS'  PRACTICE  REPORTS. 

In  the  Application  of  Clark. 

necessarily  beyond  the  limits  of  our  territory,  to  avail  them- 
selves of  the  naturalization  laws ;  but  the  person  drawing  the 
repealing  clause  made  it  general  instead  of  an  exception  in 
their  favor.  Whether  Congress  should  not  restore  this  pro- 
vision, making  an  exception  in  favor  of  the  seamen  and  the 
soldier,  it  is  not  for  me  now  to  say,  as  I  am  inquiring  only 
what  the  law  is,  that  it  may  be  administered  correctly  by  this 
court.  From  the  parts  of  the  laws  of  Congress  to  which  I 
have  referred,  I  think  there  can  be  no  doubt  of  the  correctness 
of  the  position  I  have  taken  on  this  subject,  and  that  the  prac- 
tice of  the  clerks  in  issuing  certificates  of  citizenship  without 
any  application  to  the  court,  and  on  proof  of  residence  only,  is 
an  abuse  which  needs  to  be  corrected.  It  was  never  intended 
by  those  who  enacted  the  act  for  the  naturalization  of  aliens, 
that  persons  who  had  been  transported  for  crime — that  those 
who  came  over  here  merely  because  Europe  was  too  full  for 
them — but  who  retained  their  loyalty  of  feeling  for  the 
monarchies  they  had  left  should,  because  they  remained  here 
for  the  period  of  five  years,  be  entitled  to  admission  to  citizen- 
ship. The  intention  was  to  permit  those  who  came  here  from 
abroad  seeking  a  permanent  home — who,  by  five  years  of  con- 
tinuous residence,  manifested  that  intention — and  by  good 
behavior  during  all  that  time,  and  an  attachment  to  republi- 
can principles,  which  could  be  proved  to  the  satisfaction  of  a 
court,  had  shown  themselves  worthy  recipients  of  the  benefits 
to  be  derived  from  citizenship,  and  safe  depositories  of  the 
powers  it  confers,  to  be  admitted  to  these  rights  and  the  exer- 
cise of  these  powers,  by  an  order  entered  in  open  court  after 
an  examination  into  the  facts  of  each  case — and  a  judicial 
decision  upon  the  application — an  examination  which  should 
be  conducted  with  the  same  care,  and  a  decision  which  should 
be  made  with  the  same  deliberation  and  solemnity  as  that 
which  should  accompany  every  other  judicial  act.  Those 
courts  which,  instead  of  administering  this  law,  have  by  their 
negligence  and  inattention  practically  repealed  it,  admitting 
thousands  to  the  rights  of  citizenship,  who  want  all  the  requi- 
sites to  entitle  them  to  such  admission,  have  been  guilty  of  a 
gross  violation  of  duty,  and  have  made  the  law  itself  odious 
in  public  estimation.  Of  the  wisdom  or  propriety  of  our 


NEW-YOKK.  95 


In  the  Application  of  Clark. 


present,  or  of  any  naturalization  laws,  it  is  not  my  business  at 
this  time  to  speak :  my  duty  now  is  to  administer  the  laws  as 
they  are.  I  ain  compelled,  for  the  reasons  I  have  stated,  to 
deny  the  prayer  of  the  applicant,  and  also  to  forbid  the  clerk 
from,  in  any  manner,  exercising  the  powers  conferred  by 
Congress  upon  the  courts.  This  is  all  that  is  necessary  for  me 
to  say  in  deciding  the  case  now  before  the  court ;  but  there 
are  other  provisions  of  the  naturalization  laws  which  are 
loosely  interpreted,  or  wholly  misunderstood.  By  the  act  of 
May  26,  1824,  the  period  between  the  declaration  of  intention 
and  granting  the  certificate  of  citizenship  is  reduced  from 
three  to  two  years ;  but  this  in  no  manner  affects  the  require- 
ments of  five  years  previous  continuous  residence.  The  first 
section  of  the  same  act  prescribes  a  different  rule  for  the 
naturalization  of  aliens  who  arrive  in  this  country  prior  to 
attaining  the  age  of  eighteen  ;  it  is : — 

"  Any  alien,  being  a  free  white  person,  and  a  minor,  under 
the  age  of  twenty-one  years,  who  shall  have  resided  in  the 
United  States  three  years  next  preceding  his  arriving  at  the  age 
of  twenty-one  years,  and  who  shall  have  continued  to  reside 
therein  to  the  time  he  may  make  application  to  be  admitted  a 
citizen  thereof,  may,  after  he  arrives  at  the  age  of  twenty-one 
years,  and  after  he  shall  have  resided  five  years  within  the 
United  States,  including  the  three  years  of  his  minority,  be 
admitted  a  citizen  of  the  United  States  without  having  made 
the  declaration  required  in  the  first  condition  of  the  first  section 
of  the  act  to  which  this  is  an  addition,  three  years  previous  to 
his  admission  :  Provided,  such  alien  shall  make  the  declaration 
required  therein  at  the  time  of  his  or  her  admission ;  and  shall 
further  declare,  on  oath  and  prove,  to  the  satisfaction  of  the 
Court,  that  for  three  years  next  preceding,  it  has  been  the  bona 
fide  intention  of  such  alien  to  become  a  citizen  of  the  United 
States,  and  shall  in  all  other  respects  comply  with  the  laws  in 
regard  to  naturalization." 

The  practical  construction  of  this  provision  I  am  informed 
is  for  the  clerks  to  admit  aliens  who  will  make  oath  they 
arrived  during  their  minority,  on  proof  of  three  years  resi- 
dence. The  true  construction  is,  that  it  merely  does  away  with 
the  necessity  of  a  previous  declaration  of  intention  to  become 


96  ABBOTTS'  PEACTICE  EEPOETS. 

In  the  Application  of  Clark. 

a  citizen,  on  the  part  of  those  who  arrive  in  the  country  prior 
to  attaining  the  age  of  eighteen  years,  but  requires  instead  of 
such  previous  declaration,  the  oath  of  the  party,  and  also  proof 
that  for  three  years  next  preceding,  it  has  been  the  intention 
of  the  alien  to  become  a  citizen,  but  in  all  other  respects,  the 
act  of  1802  and  its  amendments  are  to  be  complied  with  by  the 
person  who  applies  under  this  section.  The  act  of  1802  pro- 
vided that  no  person  arriving  after  the  passage  of  that  act, 
should  become  a  citizen,  unless  he  had  his  name,  birthplace, 
age,  nation,  &c.  registered  in  the  clerk's  office  where  he  arrived  ; 
and  also  the  place  of  his  intended  settlement,  and  required  that 
the  clerk  should  record  this  in  his  office,  and  grant  certificates. 
In  1816,  an  act  still  more  stringent  in  its  requirements  as  to  the 
evidence  in  cases  of  naturalization,  was  passed  and  remained 
in  force  until  1828,  when  these  provisions  were  wholly 
repealed.  There  are  several  other  statutes  relating  to  the 
subject  of  naturalization,  which  are  not  formally  repealed,  but 
which  have  become  obsolete  for  want  of  persons  to  whom  they 
can  be  applied.  The  man  who  would  collect  and  embody  in 
a  single  act  the  operative  portions  of  the  various  statutes  on 
this  subject,  with  such  amendments  as  experience  has  shown 
are  necessary  to  their  due  and  faithful  execution,  would  be  a 
public  benefactor.  While  they  are,  as  now,  scattered  through 
the  laws  of  Congress  from  1802  down  to  1848,  it  cannot  be 
expected  that  the  judges  of  the  various  courts  will  undertake 
the  task  of  ascertaining  exactly  which  section  and  line  or  word 
is  in  force,  and  which  is  repealed,  consequently  the  adminis- 
tration of  these  laws  will  be  loose  and  defective  until  such  an 
act  is  passed.  And  when  that  is  done,  and  the  laws  are 
administered  in  their  purity,  it  will  be  apparent  that  the  faults 
have  been  far  more  in  the  administration  than  in  the  laws 
themselves. 


NEW-YOKE.  97 


Dobson  a.  Pearce. 


DOBSON  a.  PEARCE. 
Court  of  Appeals  ;  December  Term,  1854. 

FRAUDULENT*  JUDGMENTS. — EFFECT  OF  DECREE  OF  A  COURT  OF 
ANOTHER  STATE. 

It  is  a  good  defence  to  an  action  upon  a  judgment, — whether  brought  by  the 
original  judgment  creditor  or  his  assignee, — that  the  judgment  was  fraudulently 
obtained. 

A  court  of  equity  has  jurisdiction  to  make  a  decree  restraining  a  judgment  creditor 
from  bringing  suits  upon  his  judgment,  upon  the  ground  that  it  was  fraudulently 
obtained. 

A  duly  authenticated  record  of  such  a  decree,  rendered  in  a  court  of  equity  of 
another  State  having  jurisdiction  of  the  parties,  is  a  conclusive  defence  against  the 
prosecution  in  a  court  of  this  State,  of  a  suit  upon  the  judgment  referred  to  in  the 
decree. 

Such  decree  is  conclusive  upon  the  parties  everywhere  and  in  every  forum,  where 
the  same  matters  are  drawn  in  issue ;  not  indeed  as  an  injunction,  but  as  a  judg- 
ment of  a  court  of  another  State. 

Appeal  from  judgment  upon  a  verdict. 

This  was  an  action  in  the  nature  of  an  action  of  debt  on  a 
judgment  rendered  in  the  New  York  Superior  Court,  April 
17,  1847,  for  $612.93,  in  favor  of  one  James  K  Olney,  against 
Abner  T.  Pearce,  the  defendant,  and  afterwards  assigned  to 
Thomas  Dobson,  the  present  plaintiff. 

From  the  answer,  it  appeared  that  the  judgment  sued  upon 
was  fraudulently  entered  up  by  Olney.  The  defendant  was  a 
resident  of  Connecticut ;  but  being  casually  in  the  city  of  New 
York  in  1846,  Olney  procured  a  capias  to  be  served  upon  him; 
and  by  assurances  that  no  further  proceedings  should  be  taken 
in  the  suit  so  commenced,  induced  him  not  to  appear ;  and  in 
consequence  of  his  non-appearance,  judgment  was,  without  his 
knowledge,  .entered  up  against  him  by  default.  About  two 
years  afterwards,  Olney  commenced  an  action  of  debt  on  this 
judgment,  in  the  Superior  Court  of  the  State  of  Connecticut. 
While  this  action  was  pending,  the  defendant  commenced  a 
suit  upon  the  Chancery  side  of  the  Superior  Court  of  Con- 
necticut, complaining  that  the  judgment  upon  which  he  was 


98  ABBOTTS'  PRACTICE  REPORTS. 

Dobson  a.  Pearce. 

sued  at  law,  was  fraudulently  procured  against  him,  and  was 
based  upon  an  unfounded  claim  ;  and  praying  that  Olney 
might  be  perpetually  enjoined  from  prosecuting  the  suit  upon 
it.  On  the  tenth  of  September,  1850,  an  attorney  having 
appeared  for  Olney  in  the  chancery  suit,  and  proofs  having 
been  put  in,  it  was  decreed  that  the  facts  alleged  by  Pearce 
against  Olney  in  relation  to  the  fraudulent  entry  of  the  judg- 
ment, and  the  character  of  the  claim  upon  which  it  was  based, 
were  true ;  and  Olney  was  enjoined  against  prosecuting  his 
action  then  pending  against  Pearce,  upon  the  judgment.  He 
accordingly  withdrew  the  action,  and  judgment  was  rendered 
for  Pearce,  the  defendant.  But  on  the  following  day,  Olney 
assigned  the  original  judgment  to  Dobson  the  present  plaintiff; 
who  although  acquainted  with  the  facts  above  stated,  com- 
menced this  action  upon  it. 

The  reply  denied  the  allegations  of  the  answer. 

The  cause  was  three  times  tried% 

Upon  the  first  trial,  before  Mr.  Justice  Paine,  June  19, 
1851,  after  the  plaintiff  had  proved  the  judgment,  and  the 
assignment  of  it  by  Olney,  to  himself,  the  defendant  offered 
in  evidence  a  record  duly  authenticated  of  the  proceedings  in 
the  chancery  suit  in  Connecticut,  including  the  decree,  and 
moved  for  a  dismissal  of  the  complaint,  on  the  ground  that 
the  plaintiff  was  estopped  and  barred  from  prosecuting  his 
suit,  by  the  adjudication  of  the  Superior  Court  of  Connecticut. 
The  court  decided  that  the  decree  of  the  Superior  Court  of 
Connecticut  did  not  constitute  any  such  bar  or  estoppel,  and 
denied  the  motion ;  and  defendant's  counsel  excepted. 

The  defendant's  counsel  then  offered  the  same  record  in 
evidence,  as  matter  of  defence  to  the  suit.  The  plaintiffs 
counsel  objected,  and  the  evidence  was  excluded  ;  the  defend- 
ant's counsel  excepting.  A  verdict  was,  by  direction  of  the 
court,  found  for  the  plaintiff.  The  defendant  moved  to  set 
this  verdict  aside,  which  motion  was  directed  to  be  heard  at 
general  term.  The  court  at  general  term  granted  the  motion 
and  ordered  a  new  trial.* 

I 

*  The  proceedings  in  the  case  before  the  general  term  are  reported  1  Duer,  142. 
See  also  10  N.  Y.  Leg.  Obs. 


NEW-YOKE:.  99 


Dobson  a.  Pearce. 


At  the  second  trial,  before  Mr.  Justice  Campbell,  January 
3,  1853,  after  the  plaintiff's  evidence  was  in,  the  defendant 
offered  in  evidence  the  record  of  the  proceedings  in  the 
Superior  Court  of  Connecticut,  which  was  admitted,  subject 
to  exception  on  the  part  of  plaintiff,  and  moved  for  a  dis- 
missal of  the  complaint,  on  the  ground  as  before  ;  that  the 
Connecticut  decree  estopped  the  plaintiff.  The  plaintiff's 
counsel  opposed  this  motion,  and  read  in  evidence,  subject  to 
exception  by  defendant,  the  record  of  the  proceedings  in  the 
suit  commenced  by  him  at  law  in  Connecticut,  to  recover  upon 
the  judgment  now  in  suit.  According  to  the  record,  the  suit 
at  law  was  withdrawn  before  the  decree  in  equity  restraining 
its  prosecution  was  made,  instead  of  afterwards,  as  intimated 
in  defendant's  answer.  Plaintiff  also  offered  evidence  to  prove 
that  the  decree  in  equity  of  the  Connecticut  Superior  Court 
was  fraudulently  procured,  and  without  any  notice  to  Olney 
of  the  institution  of  the  suit.  The  court  refused  to  receive 
this  evidence,  deciding  that  the  record  of  the  proceedings  in 
the  chancery  suit  could  not  be  collaterally  impeached ;  and 
dismissed  the  complaint,  entering  judgment  for  the  defendant. 

The  plaintiff  appealed  from  this  judgment  to  the  general 
term;  where  it  was  reversed  for  error  in  the  exclusion  of  the 
evidence  offered  by  plaintiff,  and  a  new  trial  ordered. 

This  third  trial  was  had  before  Mr.  Justice  Duer,  April  5, 
1853,  and  the  evidence  offered  on  the  part  of  both  plaintiff 
and  defendant,  at  the  previous  trial  before  Justice  Campbell, 
was  put  in,  subject  to  like  exceptions.  The  court  instructed 
the  jury  that  the  Connecticut  decree  was  conclusive  upon  the 
plaintiff,  if  the  jury  found  that  Olney  appeared  in  the  chan- 
cery suit  by  his  authorized  attorney ;  otherwise  he  was  not 
bound  by  it. 

The  jury  found  for  defendant;  and  judgment  having  been 
afterwards  rendered  in  his  favor  at  special  term,  the  plaintiff 
appealed  to  the  general  term,  where  it  was  affirmed. 

From  this  judgment  the  plaintiff  appealed  to  the  Court  of 
Appeals. 

E.  Terry,  for  appellant. 
A.  Childs,  for  respondent. 


100  ABBOTTS'  PRACTICE  REPORTS. 


Dobson  a.  Pearce. 


JOHNSON,  J. — The  questions  in.  this  cause  arise  upon  two 
exceptions  taken  at  the  trial.  The  first  was  taken  to  the  deci- 
sion admitting  in  evidence  the  record  of  a  decree  in  equity, 
made  by  the  Superior  Court  of  Judicature  of  the  State  of  Con- 
necticut, between  the  defendant  in  this  suit  and  one  Olney,  the 
immediate  assignor  to  the  plaintiff  of  the  judgment  now  sued 
upon.  The  second  was  to  the  instruction  of  the  court  to  the 
jury,  that  the  record  of  the  proceedings,' finding,  and  decree 
aforesaid,  given  in  evidence  by  the  defendant  to  support  the 
allegations  in  his  answer,  was,  for  the  purposes  of  this  suit,  con- 
clusive evidence  upon  the  plaintiff,  if  the  jury  found  that 
Olney  appeared  in  that  cause  by  his  authorized  attorney. 

The  plaintiff  is  in  the  same  position  which  Olney  would 
have  occupied  had  he  been  plaintiff;  he  is  the  immediate 
assignee  of  Olney,  against  whom,  before  the  assignment,  the 
decree  was  pronounced  ;  and  if  it  be  material,  he  had  actual 
notice  of  the  decree  when  the  assignment  was  made  to  him. 
Giving  to  the  plaintiff's  objections  to  the  admission  of  the- 
record  the  broadest  effect,  the  first  question  is,  whether  the 
defence  set  up  by  the  answer  was  available.  That  defence  is, 
in  substance,  that  the  judgment  sued  upon  was  fraudulently 
entered  up,  after  assurances  on  behalf  of  the  plaintiff  in  that 
suit,  to  the  defendant,  that  no  further  proceedings  should  be 
taken  in  the  suit  without  notice  to  him,  whereby  he  was 
induced  not  to  take  steps  to  interpose  a  defence,  which  in 
point  of  fact  he  could  successfully  have  maintained. 

Relief  against  such  -a  judgment  upon  these  facts  would  have 
been  within  the  power  of  a  court  of  equity  in  this  State,  upon 
a  bill  filed  for  that  purpose.  (2  Story,  Eq.  Jur.,  §§  887,  896. 
Huggins  v.  King,  3  Barb.,  S.  C.  72.,  616).  The  Code  (§  69) 
having  abolished  the  distinction  between  actions  at  law  and 
suits  in  equity,  and  the  forms  of  all  such  actions  as  heretofore 
existing,  an  equitable  defence  to  a  civil  action  is  now  as  avail- 
able as  a  legal  defence. 

The  question  now  is,  ought  the  plaintiff  to  recover  ?  and  any- 
thing which  shows  that  he  ought  not  is  available  to  the  defend- 
ant, whether  it  was  formerly  of  equitable  or  legal  cognizance. 

The  next  question  is,  whether  the  record  of  the  decree  of  the 
Superior  Court  of  Connecticut  was  competent  evidence  upon 


NEW-YOKE.  101 


Dobson  a.  Pearce. 


Ibis  issue.  Olney  actually  appeared  by  his  attorney  in  tbat 
suit,  and  was  beard  upon  its  merits.  He  was,  therefore,  before 
tbe  court,  and  it  had  jurisdiction  of  his  person,  if  it  had  juris- 
diction of  the  Subject  matter  of  the  suit.  The  object  of  the 
suit  was  to  restrain  Olney  from  prosecuting  a  suit  at  law  in 
the  same  court  upon  the  judgment  in  suit  here,  and  the 
grounds  on  which  that  relief  was  sought  were  the  same  which 
are  set  up  as  a  defence  here.  The  jurisdiction  to  restrain  suits 
at  law  being  one  of  the  firmly  established  parts  of  the  author- 
ity of  the  courts  of  equity,  and  the  plaintiff  in  the  suit  which 
was  enjoined  having  undertaken  to  prosecute  that  suit  in  a 
court  of  law  in  the  State  of  Connecticut,  the  only  conceivable 
grounds  for  denying  the  equitable  jurisdiction  which  was  exer- 
cised in  the  case,  are  either  that  no  court  of  equity  anywhere 
had  power  to  restrain  a  suit  upon  a  judgment  at  law  upon  such 
grounds,  or  that  a  court  of  equity  in  one  State  has  no  jurisdic- 
tion to  restrain  such  a  suit  upon  a  judgment  of  a  court  of  law 
of  another  State.  The  first  of  these  grounds  has  already  been 
considered  and  found  unsound.  The  other  rests  either  upon 
some  ground  of  comity  between  States,  or  upon  the  force  of 
the  constitution  and  laws  of  the  United  States. 

The  objection,  so  far  as  it  is  founded  upon  an  assumed  viola- 
tion of  the  comity  which  exists  between  the  several  States  of 
the  United  States,  does  not  reach  to  the  jurisdiction  of  the 
court. 

The  rules  of  comity  may  be  a  restraint  upon  a  court  in  the 
exercise  of  an  authority  which  it  actually  possesses,  but  it  is 
self-imposed.  (Bank  of  Augusta  v.  Earle,  13  Pet.,  519).  The 
courts  of  each  State  must  judge  for  themselves  exclusively 
how  far  they  will  be  restrained,  and  in  what  cases  they  will 
exercise  their  power,  except  where  the  constitution  of  the 
United  States  and  the  laws  made  in  pursuance  of  it.  prescribe 
a  rule ;  where  that  is  the  case,  the  question  ceases  to  be  one  of 
comity,  and  becomes  one  of  right. 

The  question  then  remains  to  be  considered  upon  the  consti- 
tution and  laws  of  the  United  States,  and  here  the  decisions 
permit  of  no  doubt. 

"Full  faith  and  credit"  are  given  to  the  judgment  of  a 
-State  court,  when  in  the  court  of  another  State  it  receives  the 


102  ABBOTTS'  PKACTICE  REPORTS. 

Dobson  a.  Pearce. 

same  faith  and  credit  to  which  it  was  entitled  in  the  State 
where  it  was  pronounced.  (Hampton  v.  McConnell,  3  Wheat., 
234).  "We  have  then  a  decree  of  the  Superior  Court  of  Con- 
necticut, in  a  cause  where  they  had  jurisdiction  of  the  subject 
matter  and  of  the  parties,  and  it  is  duly  authenticated  and 
relevant  to  the  issue  on  trial.  Its  admissibility  in  evidence  fol- 
lows, of  course. 

By  the  record  of  that  decree,  it  appears  that  the  very 
matters  in  issue  here  were  litigated  .there,  and  were  decided 
adversely  to  Olney,  whom  the  plaintiff  represents.  The  deter- 
mination is  necessarily  conclusive  upon  him  as  to  all  the  mate- 
rial facts  there  litigated  and  determined. 

Judgment  affirmed  with  costs. 

ALLEN,  J. — A  judgment  rendered  by  a  court  of  compe- 
tent jurisdiction  cannot  be  impeached  collaterally  for  error 
or  irregularity,  but  is  conclusive  until  set  aside  or  reversed 
by  the  same  court,  or  some  other  court  having  appellate  juris- 
diction. (Smith  v.  Lewis,  3  J.  .Z?.,  157 ;  Homer  v.  Field,. 
1  Pick.,  488.)  The  jurisdiction  of  the  court  in  which  a  judg- 
ment has  been  rendered  is,  however,  always  open  to  inquiry, 
and  if  it  has  exceeded  its  jurisdiction,  or  has  not  acquired 
jurisdiction  of  the  parties  by  the  due  service  of  process,  or  by 
a  voluntary  appearance,  the  proceedings  are  cor  am  nan  judice, 
and  the  judgment  is  void.  The  want  of  jurisdiction  has  always 
been  held  to  be  a  valid  defence  to  an  action  upon  the  judg- 
ment, and  a  good  answer  to  it  when  set  up  for  any  purpose. 

So,  fraud  and  imposition  invalidate  a  judgment,  as  they  do 
all  acts,  judicial  as  well  as  extra-judicial ;  and  it  is  not  without 
semblance  of  authority  that  it  has  been  suggested,  that  at  law 
the  fraud  may  be  alleged  whenever  the  party  seeks  to  avail 
himself  of  the  result  of  his  own  fraudulent  conduct  by  setting- 
up  the  judgment,  the  fruits  of  his  fraud.  (See  per  Thompson,  C. 
J.,  in  Borden  v.  Filch,  15  Johns.  It.  121,  and  cases  cited.) 

But  whether  this  be  so  or  not,  it  is  unquestionable  that  a 
court  of  chancery  has  power  to  grant  relief  against  judgments 
when  obtained  by  fraud.  Any  fact  which  clearly  proves  it  to 
be  against  conscience  to  execute  a  judgment,  and  of  which 
the  injured  party  could  not  avail  himself  at  law,  but  was  pre- 
vented by  fraud  or  accident  unmixed  with  any  fault  or  negli- 


NEW-YORK.  103 


Dobson  a.  Pearce. 


gence  in  himself  or  his  agent,  will  justify  an  interference  by 
a  court  of  equity.  (Reigal  v.  Wood,  1  Johns.  Ch.  R.  402  ;  Mc- 
Donald v.  Neilson,  2  Cow.  R.  139  ;  Duncan  v.  Lyons,  3  Johns. 
Ch.  R.  351 ;  Marine  Insurance  Company  of  Alexandria  v.  Hodg- 
son, 7  Cranch,  352 ;  Shottenkirk  v.  Wheeler,  3  Johns.  Ch.  R. 
275). 

Tinder  our  present  judiciary  system  the  functions  of  the 
courts  of  common  law  and  of  chancery  are  united  in  the  same 
court,  and  the  distinctions  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  and  suits  are  abolished, 
and  the  defendant  may  set  forth  by  answer  as  many  defences 
as  he  may  have,  whether  they  be  such  as  have  been  heretofore 
denominated  legal  or  equitable,  or  both.  (Code  §  69,  §  150). 
The  Code  also  authorizes  affirmative  relief  to  be  given  to  a 
defendant  in  an  action,  by  the  judgment,  (§274).  The  intent 
of  the  legislature  is  very  clear,  that  all  controversies  respecting 
the  subject  matter  of  the  litigation  should  be  determined  in  an 
action,  and  the  provisions  are  adapted  to  give  effect  to  that  intent. 

Whether,  therefore,  heretofore,  fraud  or  imposition  in  the 
recovery  of  a  judgment  could  have  been  alleged  against  it 
collaterally  at  law,  or  not,  it  may  now  be  set  up  as  an  equita- 
ble defence  to  defeat  a  recovery  upon  it.  Under  the  head  of 
equitable  defences  are  included  all  matters  which  would  before 
have  authorized  an  application  to  the  Court  of  Chancery  for 
relief  against  a  legal  liability,  but  which,  at  law,  could  not 
have  been  pleaded  in  bar.  The  facts  alleged  by  way  of  defence 
in  this  action  would  have  been  good  cause  for  relief  against 
the  judgment  in  a  court  of  chancery,  and  under  our  present 
system  are,  therefore,  proper  matters  of  defence,  and  there 
was  no  necessity  or  propriety  for  a  resort  to  a  separate  action 
to  vacate  the  judgment.  i 

In  Connecticut,  although  law  and  equity  are  administered 
by  the  same  judges,  still  the  distinction  between  law  and 
equity  is  preserved,  and  justice  is  administered  under  the  heads 
of  common  law  and  chancery  jurisdiction,  by  distinct  and 
appropriate  forms  of  procedure  ;  and  hence,  as  it  was  at  least 
doubtful  whether  at  law  the  fraud  alleged  would  bar  a  recovery 
upon  the  judgment,  a  resort  to  the  chancery  powers  of  the 
court  of  that  State  was  proper,  if  not  necessary. 


104:  ABBOTTS'  PRACTICE  REPORTS. 


Dobson  a.  Pearce. 


The  right  of  the  plaintiff  in  the  judgment  was  a  personal 
right,  and  followed  his  person,  and,  aside  from  the  fact  that 
he  had  resorted  to  the  courts  of  Connecticut  to  enforce  his 
claim  under  the  judgment,  the  courts  of  that  State,  having 
obtained  jurisdiction  of  his  person  by  the  due  service  of  pro- 
cess within  that  State,  had  full  power  to  pronounce  upon  the 
rights  of  the  parties  in  respect  to  the  judgment,  and  to  decree 
concerning  it.  It  necessarily  follows  that  the  decree  of  the 
Supreme  Court  of  Connecticut,  sitting  as  a  court  of  chancery, 
directly  upon  the  question  of  the  fraud,  is  conclusive  upon  the 
parties  to  that  litigation,  and  all  persons  claiming  under  them 
with  notice  of  the  adjudication.  The  judgment  of  a  court  of 
competent  jurisdiction  upon  a  point  litigated  between  the  par- 
ties, is  conclusive  in  all  subsequent  controversies,  when  the 
same  point  comes  again  in  question  between  the  same  parties. 
(White  v.  Coatsworth,  2  $eld.  137  ;  Embury  v.  Conner,  3 
Comst.  522).  In  the  State  of  Connecticut  it  is  quite  clear  the 
question  of  fraud  would  not  be  an  open  question  between  the 
parties,  but  would  be  considered  entirely  settled  by  the  decree 
of  the  court  of  that  State,  and  as  "  full  faith  and  credit  "Js 
to  be  given  by  each  State,  to  the  judicial  proceedings  of  every 
other  State,  that  is,  the  same  credit,  validity  and  effect  as  they 
would  have  in  the  State  in  which  they  were  had,  the  parties 
are  concluded  in  the  courts  of  this  State  by  the  judgment  of  the 
court  in  that  State,  directly  upon  the  question  in  issue.  (Hamp- 
ton v.  McConnell,  3  Wheat.  234).  The  decree  of  the  court  of 
chancery  of  the  State  of  Connecticut,  as  an  operative  decree, 
so  far  as  it  enjoined  and  restrained  the  parties,  had  and  has 
no  extra-territorial  efficiency,  and,  as  an  injunction,  does  not 
affect  the  courts  of  this  State  ;  but  the  judgment  of  the  court 
upon  the  matters  litigated  is  conclusive  upon  the  parties,  every- 
where and  in  every  forum  where  the  same  matters  are  drawn 
in  question.  The  court  acquired  jurisdiction  of  the  parties  by 
the  commencement  of  the  action  and  the  service  of  process 
upon  the  defendant  therein,  and  his  appearance  by  an  authori- 
zed attorney,  and  the  withdrawal  of  the  action  of  debt  upon 
the  judgment  did  not  deprive  it  of  jurisdiction  thus  acquired. 
The  judgment  of  the  Superior  Court  must  be  affirmed  with 
costs. 


NEW-YORK.  105 


Dobson  a.  Pearce. 


DENIO,  J.,  (stated  the  following  as  the  conclusions  to  which 
he  had  arrived). 

1.  The  judgment  of  the  Superior  Court  in  New  York,  not- 
withstanding the    alleged  fraud,   was    conclusive   upon   the 
defendant  in  it;  and  in  an  action  upon  it,  no  allegation  of 
matter  of  fact,  in  pais,  could  be  admitted  to  impeach  its 
validity.     It  could  only  be  relieved  against  on  motion,  or  by 
an  action  in  the  nature  of  a  bill  in  equity. 

2.  It  was,  under  the  constitution  and  laws  of  the  United 
States,  equally  conclusive  in  the  courts  of  Connecticut  as  in 
this  State. 

3.  But  it  was  competent  for  the  courts  in  this  State,  or  in 
any  other  State  which  had  obtained  jurisdiction  of  the  person 
of  the  plaintiff,  by  a  direct  proceeding,  to  impeach  the  equit- 
able  obligation   of  the  judgment   on   the  ground  of  fraud, 
surprise,  or  mistake  in  obtaining  it,  or  for  any  other  matter 
which,  according  to  the  principles  of  a  court  of  chancery, 
would  render  it  inequitable  and  unconscientious  for  "the  plain- 
tiff to  insist  upon  the  recovery. 

The  jurisdiction  of  courts  of  equity  in  this  respect  is  well 
stated  •  in  Pearce  a.  Olney,  (20  Conn.  544,)  where  the  question 
upon  this  judgment  was  examined  by  the  Supreme  Court  of 
Errors  of  Connecticut.  (See  also  2  Cowen,  193,  and  cases 
cited). 

4.  If  a  court  in  this  State,  in  such  a  suit  as  is  referred  to 
under  the  last  head,  had  given  judgment  to  the  effect  that  the 
judgment  of  the  Superior  Court  had  been  obtained  by  fraud 
or  mistake,  or  in  such  a  manner  in  any  respect  that  it  could 

'  not  be  conscientiously  enforced,  such  determination  would 
have  been  a  bar  in  an  action  at  law  on  such  Superior  Court 
judgment.  It  would  have  been  similar  to  a  decree  in  chancery 
setting  aside  a  contract  or  conveyance,  which  it  cannot  be 
doubted  would  have  barred  an  action  at  law  on  such  contract 
or  conveyance.  " 

5.  The  judgment  or  decree  of  the  Supreme  Court  of  Errors 
in  Connecticut  (that  court  having  jurisdiction  of  the  parties) 
is  equally  effectual  as  a  judgment  to  the  same  effect  in  this 
State  would  have  been.     This  results  from  the  constitutional 
provision  before  referred  to,  and  the  act  of  Congress  which 


106  ABBOTTS'  PRACTICE  REPORTS. 

Cudlipp  a.  Whipple. 

declares  that  the  records  of  judicial  proceedings  of  the  States,, 
authenticated  as  provided  by  that  act,  "  shall  have  such  faith 
and  credit  given  to  them  in  every  court  within  the  United 
States  as  they  have  by  law  or  usage  in  the  courts  of  the  State 
from  whence  the  said  records  are  or  shall  be  taken."  (Laws 
U.  S.  by  Story,  p.  93). 

6.  The  judgment  of  the  Supreme  Court  of  Judicature  of 
Connecticut,  determining  that  the  facts  set  forth  in  the  defend- 
ant's petition  were  true,  and  forever  enjoining  a  prosecution 
of  the  judgment  of  the  Superior  Court  of  New  York,  is  a 
determination  as  to  the  equitable  validity  of  the  judgment, 
and  precludes  the  plaintiff  from  insisting  upon  it,  as  well  in 
every  State  where  the  judicial  proceedings  of  Connecticut  are 
entitled  to  full  credit,  as  in  the  State  of  Connecticut  itself. 
This  results  from  the  principle,  that  a  matter  once  litigated 
and  determined  in  a  court  of  competent  jurisdiction  cannot 
ever  again  be  drawn  in  question  by  the  same  parties,  or  any 
others  standing  in  legal  privity  with  them.     (Le  Guen  v.  Gou- 
verneur  &Kemble,  1  Johns.  Cos.,  436). 

7.  It  follows,  from  these  positions,  that  the  judgment  in 
Connecticut  is  a  perfect  bar  to  the  action  brought  upon  the 
judgment  of  the  Superior  Court. 

The  judgment  appealed  from  should  therefore  be  affirmed. 


CUDLIPP  a.  WHIPPLE. 

New  York  Superior  Court ;  Chambers,  December,  1854. 
FOKM  OF  COMPLAINTS. — SUFFICIENCY  OF  OLD  FOKMS. 

A  complaint  to  recover  for  money  lent  to,  and  paid,  laid  out  and  expended  for,  the 
defendant,  at  his  request,  is  sufficient  under  the  Code ;  though  as  general  in  its 
allegations  of  the  particulars  of  the  cause  of  action  as  the  old  form  of  a  declara- 
tion in  indebitatus  assumpsit.  If  the  defendant  wishes  a  more  detailed  statement, 
his  remedy  is  to  demand  in  writing  a  copy  of  the  account  or  the  particulars  of 
the  cause  of  action. 

Motion  to  require  plaintiffs  to  amend  complaint. 

The  plaintiffs  brought  this  action  as'assignees  of  a  demand 
which  one  James  "Whitney  had  against  the  defendant.     The 


NEW-YORK.  10T 


Cudlipp  a.  Whipple. 


facts  in  relation  to  the  demand  were  stated  thus  in  the  com- 
plaint. 

"  The  defendant  was  indebted  to  one  James  Whitney  on  the 
3rd  of  November,  1853,  in  the  sum  of  $5046  ^,  being  a 
balance  of  account  due  from  said  defendant  to  said  Whitney, 
on  an  account  for  money  lent  by  said  Whitney  to  said  defend- 
ant, and  for  money  paid,  laid  out  and  expended  by  said 
Whitney  to  and  for  the  use  of  said  defendant,  and  at  his 
request." 

The  defendant  moved  that  the  plaintiff  be  compelled  to 
make  this  part  of  the  complaint  more  definite  and  certain. 

«/.  H.  Harter,  for  the  motion. 
E.  Terry,  opposed. 

OAKLEY,  C.  J. — The  Court  of  Appeals  in  Allen  v.  Patterson, 
(3  Seld.  R.  476),  decided  that  a  complaint  in  an  action  to 
recover  for  goods  sold,  substantially  in  the  old  form  of  a  decla- 
ration in  in  debitatus  assumpsit,  was  good  under  the  Code. 
There  seems  to  be  no  distinction  in  principle  between  that 
case  and  this. 

This  action  is  brought  to  recover  a  balance  alleged  to  be 
due  upon  an  account  for  moneys  loaned  to  and  paid,  laid  out 
and  expended  for  the  defendant  at  his  request. 

Section  158  of  the  Code,  expressly  declares  that  it  shall  not 
be  necessary  for  a  party  to  set  forth  in  a  pleading  the  items 
of  an  account  therein  alleged,  but  he  shall  deliver  to  the 
adverse  party  within  ten  days  after  a  demand  thereof,  in 
writing,  a  copy  of  the  account. 

This  section  has  provided  that  a  complaint  in  a  case  like 
this  may  be  as  general  in  its  statements  as  the  old  indebitatus 
assumpsit  counts.  It  also  enables  the  adverse  party  to  obtain 
a  detailed  statement  of  the  particulars  of  the  cause  of  action 
without  an  application  to  the  court.  He  has  only  to  demand 
in  writing  a  copy  of  the  account,  and  it  must  be  furnished. 
The  complaint  in  this  case  is  therefore  as  specific  and  full  in 
its  allegations  as  the  Code  requires.  If  the  defendant  has  any 
doubt  as  to  the  items  in  respect  to  which  a  recovery  is  sought, 


108  ABBOTTS'  PRACTICE  REPORTS. 

In  the  Matter  of  Brown. 

his  remedy  is  to  demand  a  copy  of  the  account  constituting 
the  cause  of  action  stated  in  the  complaint. 
The  motion  must  therefore  be  denied. 

,  CAMPBELL  and  BOSWOKTH,  J.  J.,  concurred). 


IN  THE  MATTER  OF  BEOWN. 

LUNACY. — JURISDICTION. 
New  York  Superior  Court ;  Special  Term,  December,  1854. 

The  New  York  Superior  Court  will  not  take  jurisdiction  to  issue  a  commission  of 

lunacy. 
The  nature  and  extent  of  the  power  to  take  the  persons  and  property  of  lunatics 

and  habitual  drunkards  into  judicial  custody, — reviewed. 

Application  for  a  writ  in  the  nature  of  a  commission  de 
lunatico  inquirendo. 

P.  Y.  Cutler,  for  petitioner. 

HOFFMAN,  J. — The  question  whether  this  court  has  jurisdic- 
tion to  issue  such  a  commission  as  is  sought,  and  jurisdiction 
in  a  number  of  similar  cases  distinct  from  equity  authority  in 
an  action,  has  been  found  to  be  so  novel  and  unsettled  that  it 
has  engaged  the  consideration  of  most  of  the  judges. 

The  custody  of  lunatics  was  not  vested  in  the  English 
•court  of  chancery  as  such.  It  was  lodged  in  the  crown. 
That  branch  of  the  prerogative  might  be  exercised  by  any 
•officer  the  king  thought  fit.  It  was  ordinarily  delegated  to  a 
great  officer  of  state,  but  not  necessarily  to  the  Keeper  of  the 
Great  Seal.  A  warrant  under  the  sign  manual  was  usually 
delivered  to  the  lord  chancellor  or  lord  keeper  upon  his 
-coming  into  office.  (4  Bro.  Ch.  Pr.,  223 ;  Shelf ord  on 
Lunacy,  157).  But  the  right  of  the  crown  to  the  management 
and  control  of  .lunatics  and  their  estates  did  not  commence 
until  the  finding  of  the  office  or  inquisition  of  lunacy.  (8 
Rep.,  170  J).  And  the  method  of  ascertaining  whether  the 


NEW-YOKE:.  109 


In  the  Matter  of  Brown. 


party  was  a  lunatic,  was  a  petition  to  the  lord  chancellor, 
suggesting  the  lunacy,  and  verified  by  affidavits.  He  then 
issued  a  writ  to  the  sheriff  of  the  county  where  the  party 
resided,  to  try  by  a  jury,  and  personal  examination,  whether 
the  suggestion  was  true  or  not.  It  was  the  ordinary  writ 
upon  a  supposed  forfeiture  to  the  crown.  (Natura,  Brevium, 
581). 

As  rights  accruing  to  the  crown  by  forfeiture  or  other 
means  were  inquirable  into  by  commission  as  well  as  writ,  the 
former  superseded  the  latter  in  practice.  (Exparte  South/cot, 
Ambler,  111).  Both  issued  under  the  great  seal  from  the 
common  law  side  of  the  Court  of  Chancery,  and  were  return- 
able to  that  court.  (Ibid). 

In  Sherwood  v.  Sanderson,  (19  Ves.,  285),  the  lord  chan- 
cellor says  that  the  application  is  made  to  the  lord  chancellor, 
not  as  chancellor,  but  as  the  person  having,  under  the  especial 
warrant  of  the  crown,  the  right  to  exercise  the  duty  of  the 
crown,  to  take  care  of  those  who  cannot  take  care  of  them- 
selves. The  application  has  therefore  no  concern  with  any- 
thing passing  in  the  Court  of  Chancery ;  but  is  made  to  the 
person  holding  the  great  seal  in  whom  the  crown  has  usually 
thought  proper  to  vest  this  j  urisdiction,  as  it  would  be  made 
to  any  other  person  having  that  authority.  (See  also  Lord 
Redesdale,  Exparte  Fitzgerald,  2  Sch.  &  Lef.  435).  Justice 
Story  Eq.  Jur.  §  1364,  n.  sums  up  his  view  of  the  origin  of 
the  jurisdiction  thus :  "  The  truth  seems  to  be  that  the  lord 
chancellor  acts  merely  as  delegate  of  the  crown,  and  exercis- 
ing its  personal  prerogative  as  parens  patri  in  chancery,  and 
not  as  a  court  of  equity." 

And  H.  Fonblanque  in  his  learned  note  upon  Mr.  Har- 
grave's  observations,  expressly  considers  the  custody  of  luna- 
tics as  a  delegation  of  a  power  conferred  by  parliament; 
noticing  the  fact  that  at  common  law  the  custody  of  lunatics 
and  idiots,  at  least  such  as  held  lands,  was  not  in  the  king, 
but  in  the  lord  of  the  fee.  (2  Fonblanque,  230,  n.)  To  some 
extent  at  any  rate  it  is  inaccurate  to  say  that  the  custody  of 
the  estates  of  lunatics  existed  before  the  statute  of  Edward, 
and  was  independent  of  it.  (Ambler,  707 ;  2  John.  Ch.  R. 
237). 


110  ABBOTTS'  PRACTICE  REPORTS. 

In  the  Matter  of  Brown. 

Upon  our  revolution,  the  people  succeeded  to  the  duties  and 
prerogatives  of  the  crown ;  and  at  a  very  early  period  they 
expressly  delegated  the  authority  in  this  matter  to  the  chan- 
cellor. The  successive  statutes  were  substituted  for  the  king's 
sign-manual  to  each  lord  chancellor  or  lord  keeper.  It  is  on 
this  basis  that  the  jurisdiction  in  our  State  is  most  clearly  and 
safely  vested,  and  the  express  delegation  of  the  authority  of 
the  State  as  to  the  custody  of  the  person  and  estate  of  luna- 
tics, implied  the  right  of  judicially  ascertaining  who  were 
such  ;  and  the  course  of  proceeding  almost  necessarily  followed 
that  of  the  English  chancery. 

The  statutes  of  Edward,  ch.  9  and  10,  afford  the  model  on 
which  our  statutes  have  been  framed.  The  first  of  these  was 
the  act  of  February  6,  1788,  (2  Greenl.,  25),  enacting  that  the 
chancellor  should  have  the  care  and  provide  for  the  safe- 
keeping of  all  idiots,  and  of  their  lands  and  tenements,  goods 
and  chattels.  (§  1).  The  second  section  gives  the  care  and 
custody  of  persons  and  estates  of  lunatics  to  the  chancellor  in 
like  manner,  and  very  nearly  in  the  words  of  the  statute  of 
Edward. 

The  statute  of  the  10th  March,  1801,  embodied  these  two 
sections  into  one.  Such  was  also  the  enactment  in  the  revi- 
sion of  1813.  (1  Rev.  Laws,  147,  §  1).  The  Revised  Statutes 
of  1830  adopt  it,  with  slight  change  of  language.  (2  Rev. 
Stat.  52,  §  1). 

The  circuit  judges  under  the  Constitution  of  1822  and  the 
Revised  Statutes  of  1830,  were  vested  (in  cases  within  their 
circuits)  with  all  the  original  jurisdiction  and  powers  which 
now  are,  or  hereafter  may  be,  vested  in  the  chancellor  in  all 
causes  and  matters  in  equity,  and  in  all  causes  or  matters  of 
which  the  cognizance  is  or  shall  he  vested  in  the  chancellor,  by 
virtue  of  any  Statute.  (2  Rev.  Stat.  108,  §  2). 

The  act  of  1831,  appointing  a  vice  chancellor,  gave  to  him 
the  same  powers  in  the  first  Circuit,  and  under  this  act  the 
vice  chancellor  issued  commissions  of  lunacy.  (3  Edw. 
Rep.,  380). 

As  it  is  admitted  that  the  jurisdiction  was  not  in  the  chan- 
cellor, by  reason  of  his  being  the  head  of  the  Court  of  Chan- 
cery, it  follows  that  the  jurisdiction  of  the  vice  chancellor  and 


NEW-YORK.  1H 


In  the  Matter  of  Brown. 


circuit  judges  was  conferred  by.  that  clause  of  the  act  giving 
them  power  "  in  all  causes  or  matters  of  which  the  cognizance 
is  or  shall  be  vested  in  the  chancellor  by  virtue  of  any 
statute." 

It  results  also,  that  the  establishment  of  a  court  with  general 
equity  jurisdiction  would  not  confer  this  particular  power. 
This  would  also  result  from  the  general  doctrine  that  a  newly 
created  court  can  have  no  other  jurisdiction  than  such  as 
is  expressly  conferred.  A  new  court  cannot  prescribe.  (4 
Just.,  200). 

The  original  jurisdiction  of  the  Superior  Court,  conferred  by 
the  statute  of  1828,  and  as  varied  or  enlarged  by  any  statute 
down  to  1847,  admittedly  does  not  extend  to  such  a  case. 

J  .  i/ 

By  the  Constitution  of  1846,  (Art.  YI.  §  5),  it  was  provided 
that  the  legislature  shall  have  the  same  powers  to  alter  and 
regulate  the  jurisdiction  and  proceedings  in  law  and  equity  as 
they  have  heretofore  possessed  ;  and  by  the  14th  section  infe- 
rior local  courts  of  civil  and  criminal  jurisdiction  may  be  estab- 
lished by  the  legislature  in  cities.  By  the  12th  section  of  arti- 
cle XIV.  the  Superior  Court  was  to  remain  until  otherwise 
directed  by  the  legislature  with  its  then  existing  powers  and 
jurisdiction. 

It  is  important,  in  order  to  determine  the  present  question,  to 
advert  to  the  legislation  in  respect  to  habitual  drunkards.  The 
first  act  upon  that  subject  was  that  of  the  10th  of  March,  1821 
entitled,  "  an  Act  concerning  the  estates  of  habitual  drunk- 
ards." (Laws  of  1821,  ch.  119).  It  was  declared  to  be  lawful 
for  the  Court  of  Chancery  of  the  State  to  exercise  a  j  tirisdiction 
and  power  in  regard  to  the  estates  of  persons  who  shall  be 
incapable  of  conducting  their  own  affairs  in  consequence  of 
habitual  drunkenness,  similar  to  the  jurisdiction  and  power 
exercised  by  that  court  in  regard  to  the  estates  of  lunatics. 

The  second  section  provided  that  the  overseers  of  the  poor 
might  make  application  to  the  chancellor  for  the  exercise  of 
such  power.  By  the  third,  a  mode  of  revising  the  action  of 
the  overseers  by  a  jury  before  a  justice  of  the  peace  was 
pointed  out. 

Under  this  statute,  the  court  had  no  power  over  the  person 
of  the  drunkard,  but  only  over  his  estate.  This  was  so  held  in 


112  ABBOTTS'  PRACTICE  REPORTS. 

In  the  Matter  of  Brown. 

Ex  parte  Lynch,  5  Paige,  120.  By  the  Revised  Statutes  the 
power  of  the  court  was  extended  to  the  person  as  well  as 
the  'estate,  and  its  authority  was  placed  precisely  upon  the 
same  footing  as  over  lunatics  and  idiots.  It  was  declared  that 
the  chancellor  should  have  the  custody  of  all  idiots,  lunatics, 
persons  of  unsound  mind  and  habitual  drunkards,  and  of  their 
real  and  personal  estate  ;  and  he  was  to  provide  for  their  safe 
keeping  and  maintenance  out  of  their  real  and  personal  estates. 
(2  Rev.  /Stats.,  52,  §  1).  This  statute,  the  chancellor  observed, 
gave  the  court  a  perfect  control  over  the  person  of  an  ha- 
bitual drunkard,  which  it  could  exercise  through  a  committee. 
(Ibid). 

The  statute  of  1830  gave  the  like  jurisdiction  to  the  Court  of 
Common  Pleas  of  the  County  as  to  the  chancellor,  where  the 
drunkard's  property  was  less  than  $250.  In  vacation,  the 
application  might  be  made  to  the  first  judge  of  the  County. 
There  was  an  appeal  to  the  Court  of  Chancery.  (2  Rev.  Stats., 
52,  §  3,  4:,  5,  6).  Other  sections  provided  for  the  mode  of 
obtaining  a  sale  or  mortgage  of  the  real  estate  to  satisfy  debts. 
(§  §  11,  12,  13).  This  statute  formed  a  complete  and  uniform 
system  upon  the  whole  subject,  down  to  the  1st  of  March, 
1846,  when  the  third  edition  of  the  Revised  Statutes  was  pub- 
lished. In  defining  the  jurisdiction  of  the  Court  of  Common 
Pleas,  the  Revised  Statutes  (2  Rev.  Stats.  208),  declared  among 
other  things,  that  they  should  have  and  exercise  the  power  and 
jurisdiction  conferred  upon  them  by  law,  over  the  persons  and 
estates  of  habitual  drunkards. 

Down  to  this  period  the  Courts  of  Common  Pleas  had  no 
jurisdiction  as  to  lunatics,  and  a  defined  jurisdiction  as  to 
drunkards,  nearly  co-extensive  with  that  of  the  chancellor, 
where  the  property  was  less  than  $250. 

The  Constitution  of  November,  1846,  (see  Article  6,  §  14), 
provided  for  the  election  of  a  county  judge,  who  should  hold 
the  county  court,  and  that  the  county  court  should  have  such 
jurisdiction  in  their  county  as  the  legislature  should  prescribe. 

Then  followed  the  Judiciary  Act  of  May  12,  18-47,  and  the 
29th  section  of  Article  4,  provided  that  the  county  courts 
should  have  jurisdiction  to  hear  and  determine  all  matters 
and  proceedings,  especially  conferred  upon  and  heretofore 


NEW-YORK.  113 


In  the  Matter  of  Brown. 


triable  and  cognizable  by  courts  of  common  pleas  of  the 
several  counties. 

It  appears  to  me  that  the  power  of  the  courts  of  common 
pleas  as  to  drunkards,  vested  in  the  county  courts  by  force  of 
this  provision. 

Then  in  the  31st  section  it  was  provided  that  the  said 
county  court  "should  have  equity  jurisdiction  in  suits,  and 
proceedings  in  the  following  cases,"  among  them — "  for  the 
care  and  custody  of  lunatics  and  habitual  drunkards  residing 
in  such  county." 

The  clause  as  to  drunkards  was,  as  I  view  it,  superfluous. 
What  extent  of  jurisdiction  was  then  given  by  the  words  as  to 
lunatics  ?  It  is  to  be  observed  that  it  is  a  legislative  grant  of 
new  jurisdiction  to  a  tribunal  of  limited  powers  created  by 
statute,  and  must  be  construed  strictly.  I  apprehend  it  could 
not  possibly  be  extended  beyond  the  care  and  custody  of  the 
person. 

The  separation  betw.een  the  power  over  the  person  and  over 
the  estate,  is  strikingly  shown  by  the  case  before  Chancellor 
Walworth,  in  5  Paige,  120,  before  noticed,  where  he  held  that 
the  statute  of  1821,  only  gave  him  power  over  the  estate. 
And  in  England  it  is  quite  common  to  have  separate  com- 
mittees, especially  if  the  lunatic  is  a  female  ;  when  the  com- 
mittee of  the  person  is  generally  one  of  her  own  sex ;  and  a 
male  for  the  committee  of  the  estate.  (Skelford,  138,  &c.) 

The  21st  section  of  the  amended  Judiciary  Act  of  December, 
1847,  enacted  that  the  Superior  Court  and  Court  of  Common 
Pleas  of  the  City  and  County  of  New  York,  shall  respectively 
have  and  possess  the  same  equity  jurisdiction  which  is  con- 
ferred upon  the  several  county  courts  of  the  State  by  §  31,  of 
the  chapter  referred  to,  (the  Judiciary  Act)  or  by  any  other 
act.  See  also  the  22nd  section. 

At  this  period  then  the  Superior  Court  may  be  considered 
as  having  jurisdiction  as  to  the  person,  but  none  other. 

The  Code  of  April,  1848,  provides  first,  That  the  courts 
enumerated  (among  them  this  court)  shall  continue  to  exercise 
the  jurisdiction  now  vested  in  them  respectively,  except  as 
otherwise  prescribed  by  this  act.  (Title  I.  §  10). 

The  29th  section  of  the  same  Code,  repealed  all  statutes 


114  ABBOTTS'  PRACTICE  REPOETS. 

In  the  Matter  of  Brown. 

then  in  force,  defining  or  conferring  the  jurisdiction  of  the 
county  courts  so  far  as  they  conflicted  with  that  act ;  and 
declared  "  that  those  courts  should  have  no  other  jurisdiction 
than  that  provided  in  the  next  section."  The  30th  section 
then  proceeded  to  enumerate  the  cases  in  which  the  county 
court  should  have  jurisdiction,  and  among  them  is  the 
authority  as  to  idiots,  lunatics,  and  drunkards. 

But  a  marked  distinction  between  the  provisions  of  the 
Code  and  those  of  the  act  of  1847,  must  be  noticed.  The 
whole  enactment  of  the  latter  was,  that  the  county  court 
should  have  equity  jurisdiction  "  in  a  suit  or  proceeding  for 
the  care  and  custody  of  lunatics  and  habitual  drunkards  resid- 
ing in  such  county."  But  in  the  Code  the  provisions  are  first, 
by  subdivision  8  of  section  30.  "  The  care  and  custody  of  the 
person  and  estate  of  a  lunatic  or  person  of  unsound  mind,  or 
an  habitual  drunkard  residing  within  the  county,"  and  next, 
by  subdivision  6.  "  The  sale,  mortgage,  or  other  disposition 
of  the  real  property,  of  an  infant  or  .a  person  of  unsound 
mind,  situated  within  the  county." 

The  jurisdiction  expressly  conferred  by  the  Code  upon  this 
court,  does  not  include  the  power  in  question.  The  33rd  sec- 
tion read  in  connection  with  the  123rd,  bestows  jurisdiction  in 
certain  enumerated  cases  where  the  cause  of  action  shall  have 
arisen,  or  the  subject  of  the  action  shall  be  situated  within  the 
county,  and  in  the  other  cases  specified,  of  personal  residence 
or  the  service  of  a  summons  within  the  same.  These  actions 
are  enumerated  in  prior  subdivisions  of  section  123.  Among 
them  is  an  action  for  partition  and  for  the  foreclosure  of  a 
mortgage.  But  this  express  delegation  of  power  is  in  actions, 
and  relates  to  actions  in  the  legal  sense, — between  contesting 
parties, — and  as  distinguished  by  the  Code  from  special  pro- 
ceedings. 

The  legislature  in  this  provision  has  selected  two  of  the 
cases  of  equity  proceedings  from  the  31st  section  of  the  act  of 
1847,  and  gives  this  court  authority  in  those  cases  by  express 
enactment.  It  omits  the  other  cases,  such  as  admeasurement 
of  dower,  sale  of  infants'  estates,  and  the  care  of  lunatics.  The 
argument  that  this  amounts  to  an  implied  exclusion  of  such 
cases  is  very  strong. 


NEW-YORK.  115 


In  the  Matter  of  Brown. 


The  Court  of  Common  Pleas  was  placed  by  the  33rd  section 
of  the  Code  in  almost  precisely  the  same  situation  as  this  court 
in  regard  to  jurisdiction,  expressly  or  by  implication  conferred. 
The  judiciary  act  as  amended,  had  placed  each  court  in  a 
similar  position  as  to  its  authority  in  the  present  case.  Yet  it 
was  deemed  advisable  or  necessary  to  pass  an  act  on  the  12th 
of  April,  1854,  declaring  that  the  Court  of  Common  Pleas  has 
power  and  jurisdiction  of  the  following  proceedings.  To 
remit  fines,  &c. — and  to  exercise  all  the  powers  and  jurisdic- 
tion now  or  hereafter  conferred  upon  or  vested  in  the  said 
court,  or  in  the  county  courts  in  their  counties,  and  the 
powers  and  jurisdiction  which  were  vested  in  the  Court  of 
Common  Pleas  for  the  City  and  County  of  New  York,  before 
the  enactment  of  the  Code  of  Procedure  passed  April  12, 1848. 

By  this  express  enactment  all  the  jurisdiction  given  to 
county  courts  by  the  30th  section  of  the  Code,  is  now  vested 
in  the  Common  Pleas.  It  is  true  the  language  of  the  act  is  a 
declaration  that  "  the  said  court  lias  power  and  jurisdiction  to 
exercise  all  the  authority,"  &c., — but  even  supposing  the 
phraseology  has  been  intentionally  and  technically  used,  it  is 
too  slight  a  ground  on  which  to  imply  our  own  authority. 

It  is  clear  that  if  this  court  possess  any  jurisdiction,  it  could 
only  be  to  issue  the  commission  and  appoint  a  committee  of 
the  person.  We  could  do  nothing  as  to  the  estate,  and  a  very 
inadequate  power  would  thus  be  vested  in  us. 

The  result  of  my  examination  is,  that  at  least  the  point  of 
jurisdiction  is,  even  as  to  the  person,  so  doubtful  as  to  warrant 
our  refusal  to  attempt  its  exercise  in  a  matter  where  questions 
of  title  as  well  as  other  serious  consequences  may  depend  upon 
its  existence,  and  when  the  most  ample  and  sure  relief  is  open 
in  other  tribunals. 

Application  denied. 


116  ABBOTTS'  PRACTICE  REPORTS. 

Goedel  a.  Robinson. 

GOEDEL  a.  ROBINSON. 

New  York  Superior  Court ;  Special  Term,  December,  1854. 
UNVERIFIED  ANSWER. — WHEN  NOT  STRICKEN  our,  AS  SHAM. 

Where  neither  complaint  nor  answer  are  verified,  and  the  answer  merely  denies  the 
allegations  in  the  complaint,  setting  up  no  new  matter,  it  cannot  be  stricken  out 
as  sham.  • 

Motion  to  strike  out  an  answer  as  sham,  and  for  judgment 
as  for  want  of  answer. 

for  plaintiff. 


Mr.  Shannon,  for  defendant. 

HOFFMAN,  J. — The  complaint  states,  that  the  defendant 
made  his  promissory  note,  dated  the  28th  day  of  March,  1854, 
to  his  own  order  at  six  months,  .for  $696,  and  endorsed  and 
delivered  the  same  to  the  plaintiff;  that  the  defendant  has  not 
paid  the  same  nor  any  part  thereof,  but  that  there  remains 
due  $696,  with  interest,  for  which  sum  the  plaintiff  demands 
judgment. 

The  defendant  denies  that  at  the  time  stated  in  the  com- 
plaint, .or  at  any  other  time,  he  made  the  promissory  note 
described  in  such  complaint,  or  that  he  endorsed  any  such  note 
as  is  therein  untruly  alleged,  or  delivered  the  said  or  any  note 
to  the  plaintiff;  and  denies  that  there  is  due  from  him  to  the 
plaintiff  the  sum  demanded  in  the  complaint. 

The  affidavits  which  are  produced,  are  sufficiently  positive 
to  show  that  this  denial  of  the  answer  is  untrue.  The  clerk  of 
the  plaintiff  swore  positively  that  the  plaintiff  sold  the  defend- 
ant fifty-eight  baskets  of  champagne,  at  $12  a  basket,  on  the 
28th  of  March,  1854,  and  that  the  note  in  question  was  given 
for  the  price  ;  that  he  called  to  get  the  note,  when  the  bill  was 
admitted  and  the  note  given. 

The  plaintiff  swears  to  the  same  facts  positively,  and  also  to 
repeated  promises  of  payment. 


NEW-YORK.  117 


Goedel  a.  Robinson. 


The  question  then  is  precisely  brought  up,  whether  an 
answer  containing  a  plain  mere  denial  amounting  to  the  gene- 
ral issue,  can  be  stricken  out  as  sham. 

In  the  case  of  Caswell  v.  Bushnell,  (14  Barb.  395),  the 
Supreme  Court  of  this  district  at  general  term  held  that  an 
answer  cannot  be  stricken  out  as  sham  unless  it  sets  up  new 
matter ;  that  under  the  old  system  the  general  issue,  which 
was  a  mere  negative,  could  not  be  treated  as  sham;  citing 
Broome  County  Bank  v.  Lewis,  (18  Wend.  500),  that  sham 
pleas  were  known  before  the  Code  was  adopted,  and  had 
obtained  a  precise  legal  meaning  applicable  only  to  pleas  of 
new  matter,  and  that  the  phrase  was  used  in  that  established 
sense  in  the  Code.  (1  Chitty,  576). 

Although  it  may  be  noticed  that  the  answer  in  this  case  was 
sworn  to,  and  upon  the  general  rule  could  not  have  been 
treated  as  sham,  yet  the  court  pursuing  the  reasoning  at  the 
special  term,  expressly  place  the  decision  upon  the  ground 
stated,  and  have  made  it  a  settled  rule  in  this  district. 

In  Winne  v.  Sickles,  (9  Pr.  JR.,  217),  Justice  Harris  applied 
this  doctrine  in  its  utmost  extent,  in  a  case  almost  as  strong  as 
the  present,  upon  the  affidavits,  distinctly  holding  that  an 
unverified  answer  could  not  be  stricken  out  as  sham  when  it 
contained  nothing  but  a  general  and  full  denial  of  the  matters 
of  the  complaint. 

The  same  learned  judge  had  stated  the  rule  to  the  like  effect 
in  "White  v.  Bennett,  (7  How.  Pr.  R.,  59),  and  in  Livingston 
v.  Finkle.  (8  How.  Pr.  7?.,  486). 

On  the  other  side,  Justice  Barculo,  in  Nichols  v.  Jones,  (6 
How.  Pr.  JR.,  356),  held  that  the  true  rule  under  the  Code  was 
to  strike  out  all  answers  or  defences  as  sham  when  they  appear 
to  be  clearly  false,  whether  they  appear  to  be  good  in  point  of 
law  on  their  face  or  not.  He  then  proceeds  to  say  : — "  The  dif- 
ficulty is  in  determining  what  shall  be  deemed  conclusive  evi- 
dence of  the  falsity  of  a  pleading :  and  I  suppose  the  falsity 
must  be  admitted  or  clearly  established.  It  may  be  so  plain 
and  palpable  as  to  admit  of  indisputable  proofs,  as  where  it 
appears  by  the  affidavit  of  the  plaintiff  and  is  not  denied  by 
affidavits  on  behalf  of  the  defendant.  If,  however,  in  the  lat- 
ter case  the  defendant  comes  forward  in  reply  to  the  motion 


118  ABBOTTS'  PEACTICE  REPORTS. 

Curtis  a.  Leavitt. 

and  swears  to  the  truth  of  his  answer,  it  cannot  be  stricken 
out :  for  the  court  will  not  determine  the  question  upon  a  bal- 
ance of  testimony.  The  evidence  of  the  falsity  must  be  clear 
and  undisputed." 

In  Conklin  v.  Yandervoort,  (7  How.  Pr.  R.,  683),  Justice 
Marvin  held  that  under  the  Code  an  unverified  answer,  con- 
sisting of  denials  only,  might  be  stricken  out  as  false,  as  well 
as  where  it  sets  up  new  matters  by  way  of  defence. 

I  have  also  again  examined  the  case  of  Miner  v.  Cartledge, 
(8  Ba/rbour,  75),  so  much  criticised  in  all  the  discussions  upon 
this  subject. 

It  will  be  perceived  from  this  statement  of  the  cases  that 
judges  of  eminent  qualifications  have  greatly  differed  upon 
this  point.  The  weight  of  authority,  especially  that  of  the 
general  term  in  this  district,  preponderates  in  favor  of  the  rule 
which  restricts  the  striking  out  of  an  answer  on  the  ground  of 
its  falsity,  to  answers  containing  new  matter.  The  court  is  of 
opinion  that  this  rule  is  best  supported  by  the  doctrine  which 
prevailed  before  the  Code  and  by  a  sound  construction  of  the 
Code.  The  plaintiff  has  always  the  power  of  swearing  to  Jris 
own  statements,  to  put  the  defendant  to  an  answer  under  oath, 
when  he  may  not  be  able  to  meet  averments  by  express  denials. 
If  he  waive  this  -privilege,  he  must  be  treated  as  waiving  the 
right  to  have  his  cause  heard  upon  affidavits. 

Motion  denied  without  costs. 


CURTIS  a.  LEAVITT. 
Supreme  Court,  First  District ;  General  Term,  December,  1854. 

STAY  OF  PROCEEDINGS. — TAXATION  OF  COSTS. — SUITS  COM- 
MENCED BEFORE  THE  CODE. 

Taxation  of  costs  and  the  insertion  of  their  amount  in  the  entry  of  judgment,  are 
not  stayed  by  an  appeal  with  security. 

The  old  chancery  fee  bill  has  not  been  repealed  by  the  Code.  It  is  still  in  force  ; 
but  is  only  applicable  to  proceedings  had  prior  to  July,  1851,  in  equity  suits  com- 
menced before  the  Code. 


NEW-YORK.  119 


Curtis  a.  Leavitt. 


Held,  in  an  equity  suit  commenced  before  the  Code,  that  costs  of  all  proceedings 
prior  to  July,  1851,  must  be  taxed  according  to  the  fee  bill ;  those  of  all  subse- 
quent proceedings  according  to  the  Code. 

Application  for  taxation  of  costs. 

The  facts  are  sufficiently  stated  in  the  opinion. 

MITCHELL,  J. — The  decree  or  judgment  of  this  court  was 
rendered  on  the  31st  of  December  last,  sustaining  the  trusts  in 
the  cause,  and  adverse  to  the  claims  of  the  receiver.  It 
directed,  in  substance,  that  "  the  taxable  costs''  of  the  trustees, 
and  of  the  receiver  and  of  other  parties,  together  with  the 
amounts  secured  by  the  trust  deeds,  be  paid  out  of  the  funds 
in  the  hands  of  Mr.  Palmer,  a  special  receiver  in  these  actions ; 
and  if  these  were  not  sufficient,  next  out  of  the  funds  in  the 
hands  of  Mr.  Leavitt,  so  far  as  those  funds  were  covered  by 
the  trust  deed  and  were  necessary  for  that  purpose.  The  bills 
were  filed  in  1842,  and  answers  put  in  and  testimony  taken 
and  closed  in  December,  1850.  The  pleadings  and  proofs 
were  all  in  writing,  and  constituted  several  large  volumes  of 
printed  matter.  The  cause  was  called  for  hearing  in  April, 
1851,  before  Mr.  Justice  King,  at  special  term,  but  was 
directed  by  him,  pursuant  to  the  Judiciary  Act,  to  be  first 
heard  at  general  term ;  and  it  was  so  heard  on  the  pleadings 
and  proofs  in  1852.  The  trustees  applied  to  one  of  the  jus- 
tices of  this  court  to  tax  their  costs,  when  the  counsel  for  the 
receiver  objected  that  the  taxation  should  be  under  the  Code ; 
and  the  justice  referred  the  matter  to  the  general  term  for 
directions.  The  receiver  now  also  objects  to  the  taxation,  on 
the  ground  that  he  has  appealed  from  the  decree  and  given 
security  in  $250,  which  he  insists  is  a  stay  of  all  proceedings, 
and  especially  to  prevent  any  payment  of  moneys  under  the 
decree.  The  trustees  contend  that  the  appeal  is  no  stay, 
unless  there  be  security  for  the  payment  of  whatever  sum  the 
appellant  may  be  decreed  to  pay. 

The  only  questions  now  necessary  to  be  decided  are,  whether 
an  appeal  with  security  in  $250  stays  the  taxation  of  costs,  and 
by  what  system  the  costs  are  to  be  taxed. 

Assuming  the  view  of  section  459  of  the  Code,  that  the 


120  ABBOTTS'  PRACTICE  REPORTS. 


Curtis  a.  Leavitt. 


judgment  in  these  actions  is  to  be  entered  according  to  the 
Code,  although  the  action  was  commenced  before  the  Code, 
then,  according  to  section  311,  the  clerk  is  to  insert  in  the 
•entry  of  the  judgment  the  amount  of  the  costs  payable  to  any 
party ;  and  the  judgment  would  not  be  complete  without  such 
entry.  At  common  law,  also,  the  amount  of  the  costs  to  the 
prevailing  party  formed  a  proper  part  of  a  complete  judg- 
ment. In  equity,  also,  the  same  practice  prevailed  before 
1830,  and  then  the  only  change  was  to  annex  the  whole  bill  of 
costs  to  the  decree,  instead  of  stating  the  total  in  the  decree. 
The  Code  (§  311),  adopts  the  common  law  practice.  All,  then, 
that  the  trustees  now  propose  to  do  is  to  perfect  their  judg- 
ment, not  to  execute  it.  Section  335  prevents  an  appeal  on  a 
judgment  directing  the  payment  of  money  from  staying  the 
execution  of  the  judgment,  unless  security  be  given  in  the 
amount  therein  required;  and  section  342,  allows  such  an 
undertaking  as  was  given  in  this  case  to  "  stay  proceedings  in 
the  court  below  upon  the  judgment  appealed  from."  Proceed- 
ings upon  the  judgment  are  those  which  are  in  some  way  to 
carry  out  or  enforce  the  judgment,  as  an  execution  on  a  judg- 
ment for  the  payment  of  money,  or  a  sale  on  a  decree  of  fore- 
closure and  sale,  or  process  for  contempt,  or  other  coercive 
measures,  on  a  judgment  to  deliver  documents  or  property,  or 
to  execute  a  conveyance.  These  modes  of  "  proceeding  upon 
a  judgment"  are  specified  in  sections  335-6-7-8,  and  illustrate 
the  meaning  of  the  general  phrase  afterwards  used  in  sections 
339  and  342,  and  show  that  it  is  to  be  construed  by  reference 
to  those  illustrations,  and  in  analogy  with  them.  The  taxation 
or  adjustment  of  costs  not  being  an  execution  of  or  proceeding 
upon  the  judgment,  but  a  means  of  completing  it,  is  not 
stayed  by  the  appeal. 

The  other  question  is  as  to  the  rule  of  taxing  costs.  To 
understand  some  of  the  decisions  on  that  subject  more  clearly, 
it  may  be  proper  to  notice  the  legislation  on  which  they  were 
founded.  The  revised  statutes  prescribed  the  law  as  to  costs 
both  at  law  and  in  chancery,  and  continued  to  control  as  to 
the  amount  of  costs  in  suits  at  law  until  1840,  when  a  new 
system  of  costs  in  such  suits  was  adopted.  The  general  prin- 
ciple of  the  new  system  was  to  pay  for  a  particular  service  a 


NEW-YORK.  121 


Curtis  a.  Leavitt. 


certain  sum,  whether  it  took  much  or  little  writing  to  perform 
it.  The  new  act  was  not  merely  inconsistent  with  the  old  in 
cases  to  which  it  applied,  but  it  expressly  repealed  sections  17, 
18,  19,  22,  27,  31  and  32  of  the  revised  statutes  as  to  costs. 
These  sections  related  to  costs  of  attorneys  and  counsel  in  the 
supreme  court  and  common  pleas,  and  of  the  clerks  and  criers 
in  those  courts,  (Laws  of  1840,  ch.  386,' §40,  and  2  Rev.  Stats. 
632,  §  17,  &c).  It  however  provided  by  §  38,  that  the  act  should 
not  affect  any  suit  or  proceeding  commenced  before  that  act 
took  effect.  This  saving  section  was  repealed  in  1844,  (Laws 
of  1844,  ch.  104,  §  8),  BO  that  after  that  time  the  law  of  1840 
was  to  apply  even  to  suits  commenced  before  1840.  At  com- 
mon law,  and  without  some  statute,  a  successful  party  had  no 
right  to  costs.  If  therefore,  in  any  case  a  successful  party  will 
claim  costs,  he  must  point  out  some  statute  in  force,  and  not 
repealed,  which  gives  them  to  him.  He  cannot  claim  them 
under  a  repealed  statute,  for  that  has  ceased  to  exist ;  and  he 
is  left,  therefore,  to  claim  them  under  some  statute  in  force 
when  the  judgment  is  rendered.  Accordingly,  under  the 
joint  effect  of  the  acts  of  1840-'44,  costs  could  not  be  taxed 
under  the  system  of  the  Revised  Statutes  if  the  judgment  was 
obtained  before  the  act  of  1844  took  effect,  except  perhaps  as 
between  attorney  and  client.  (Brooklyn  Bank  v.  Willoughby, 
1  Sand.  669).  When  the  Revised  Statutes  were  adopted  they 
repealed  the  previous  statutes  as  to  costs  on  the  same  subject, 
(sub.  90  of  §  1,  3  Rev.  Stats.}  but  declared  that  such  repeal 
should  not  affect  suits  commenced  in  any  civil  cause  previous 
to  the  repeal  taking  effect — (ibid.  p.  155,  §  5).  That  left  two 
systems  in  force,  and  it  is  believed  that  each  was  applied  as  to 
old  suits  so  far  as  the  services  had  been  rendered  under  them. 
Before  the  Revised  Statutes,  costs  on  appeal  in  certain  cases, 
from  a  justice's  court  to  the  county  court,  were  in  the  discre- 
tion of  the  court — but  the  Revised  Statutes  gave  the  appellant 
full  costs  if  he  reduced  the  judgment  against  him  $10 ;  and 
the  supreme  court  held,  although  the  appeal  was  made  before 
the  Revised  Statutes  took  effect,  that  the  former  statutes  were 
repealed,  and  that  there  was  then  no  law  regulating  the  costs 
in  cases  of  that  kind  but  what  was  to  be  found  in  the  Revised 
Statutes,  which,  therefore,  must  govern.  (People  ex.  rel.  Berry 


122  ABBOTTS'  PRACTICE  REPORTS. 

Curtis  a.  Leavitt. 

v.  Herkimer  County  Common  Pleas,  4  Wend.,  210).  This  put 
the  decision  on  the  ground  that  no  other  law  as  to  costs  but  the 
new  one  was  then  in  force.  A  like  decision  on  the  same  prin- 
ple  was  made  in  the  Supervisors  of  Onondaga  v.  Briggs,  (3 
Denio,  173),  under  the  acts  of  1840 — 44.  And  the  court 
held  that  even  in  suits  commenced  before  the  act  of  1840,  if 
judgment  were  obtained  after  the  act  of  1844  took  effect,  all 
the  costs  were  to  be  taxed  under  the  act  of  1844 — but  on  the 
ground  that  the  previous  acts  as  to  costs  have  been  repealed, 
and  so  became  totally  extinct.  The  court  said — "  When  the 
30th  section  of  the  act  of  1840  came  to  be  repealed  by  the  act 
of  1844,  all  the  provisions  of  the  Revised  Statutes  regulating 
the  compensation  of  counsellors  and  attorneys  in  this  court 
became  extinct,"  and  that  besides  the  two  acts  of  1840  and 
1844,  there  was  no  other  act  in  force  when  the  suit  was  termi- 
nated, or  when  the" costs  were  taxed,  bearing  upon  the  subject. 
(Ibid.  175,  176). 

This  case  is  different.  These  were  equity  suits,  commenced 
before  the  Code  took  effect,  and  the  Revised  Statutes,  as  to  the 
costs  in  such  suits,  remain  to  this  day  unrepealed,  notwith- 
standing all  the  amendments  of  the  laws ;  they  were  not 
touched  by  the  .acts  of  1840  and  1844,  and  there  never  has 
been  any  act  expressly  repealing  them.  They,  therefore,  may 
stand  along  with  the  Code,  and  have  generally  been  supposed 
still  so  to  stand  and  to  have  equal  force  where  the  services 
were  rendered  under  them.  Section  459  of  the  Code,  as 
amended  in  1851,  does  not  by  implication  repeal  ^hem.  It 
makes  the  provisions  of  the  Code  "  apply  to  future  proceedings 
in  actions  theretofore  commenced,  as  follows  when  an  issue  of 
law  or  fact  was  to  be  tried,  then  the  trial  and  all  subsequent 
proceedings,  and  after  judgment  to  the  proceedings  to  enforce, 
vacate,  modify,  or  reverse  it,  including  the  costs  of  an  appeal." 
By  its  very  terms  it  was  to  apply  only  to  the  future  proceed- 
ings in  the  cause.  The  bills  of  complaint  drawn  and  served  in 
these  cases,  and  the  answers  and  replies  also  drawn  and  served, 
and  the  testimony  then  taken,  and  the  order  closing  the  proofs, 
all  constituted  parts  of  the  past,  (and  not  of  the  future,)  pro- 
ceedings in  the  cause  when  the  act  of  1851  was  passed.  These 
services,  too,  were  all  rendered  under  a  reasonable  expectation 


NEW-YORK.  123 


Curtis  a.  Leavitt. 


that  they  were  to  be  paid  for  under  the  laws  then  in  force. 
These  laws  do  remain  still  in  force,  and  have  no  application 
unless  it  be  to  cases  when  actions  were  commenced  (as  this 
was)  before  the  Code  took  effect,  and  the  costs  had  not  yet  been 
taxed,  nor  judgment  rendered.  They  cannot  be  said  to  have 
been  allowed  to  remain  for  cases  where  judgment  had  been 
rendered,  but  costs  not  yet  taxed;  for  after  judgment  the  rights 
of  the  parties  would  be  fixed  as  on  a  contract,  and  the  subse- 
quent repeal  of  the  law  could  not  affect  such  rights.  It  is  also 
entirely  contrary  to  the  prevailing  policy  of  the  legislature  to 
allow  a  law  to  retrospect,  even  where  it  does  not  impair  a 
contract.  Accordingly,  the  Code,  by  express  terms,  was  not 
to  apply  to  these  existing  suits,  except  in  the  first  part  of  it, 
which  relates  only  to  the  powers  of  the  courts,  (§  8).  The 
statute  of  limitations  adopted  in  it  was  made  to  apply  only  to 
future  actions  and  causes  of  action,  although  such  statutes 
affect  the  remedy  only.  The  title  of  the  Code  relating  to  costs 
was  included  in  the  part  which  was  not  to  apply  to  existing 
actions  ;  and  while  other  sections  were,  by  the  supplementary 
act  of  1849,  made  applicable  to  old  suits,  this  title  as  to  costs 
was  excluded  from  that  act,  except  section  315,  as  to  costs  on 
motion.  This  shows  a  deliberate  purpose  on  the  part  of  the 
legislature  to  save  the  right  of  costs  for  services  already  ren- 
dered, as  they  would  a  like  right  under  an  express  contract. 
Such  a  clear  purpose,  so  consonant  to  justice,  ought  not  to  be 
defeated  on  a  supposed  implication.  Section  303  was  quoted 
as  repealing  all  the  old  fee  bills ;  but  it  must  be  taken  with  the 
qualification  contained  in  section  308,  which  expressly  permits 
its  application  to  existing  suits,  and  then  it  will  only  read  that 
the  old  fee  bills  are  repealed  as  to  future  suits,  and  leave  them 
in  force  as  to  old  suits.  Then  section  459  may  apply  the  new 
system  of  costs  to  such  part  of  the  proceedings  as  should  be  had 
after  that  section  took  effect.  This  makes  all  consistent  and 
just.  The  principle  of  the  Code,  as  expressly  declared,  leads 
to  the  same  result ;  it  declares  in  the  same  section  that  costs 
are  allowed  to  the  prevailing  party  ~by  way  of  indemnity.  If, 
as  the  counsel  for  the  receiver  argues,  and  as  the  decision  of 
the  Superior  Court  sanctions,  the  old  bill  is  to  prevail,  as 
between  attorney  and  client,  the  indemnity  to  the  client  can 


124:  ABBOTTS'  PRACTICE  REPORTS. 

Curtis  a.  Leavitt. 


only  be  by  allowing  him  what  the  law  compels  him  to  pay  to 
his  attorney. 

The  result  is  that  the  Code,  as  originally  enacted,  did  not 
repeal  the  old  fee  bill  as  to  suits  previously  existing ;  and  that 
although  section  303  of  the  Code,  as  first  enacted  in  terms, 
repealed  the  old  fee  bill,  yet,  by  prior  sections  of  the  Code, 
that  repeal  applied  only  to  future  suits — thus,  before  section 
459  was  enacted,  the  old  fee  bill  was  in  force  as  to  old  suits, 
and  the  new  fee  bill  under  the  Code  as  to  new  suits,  and  ser- 
vices were  rendered  with  a  fair  understanding  that  they  were 
to  be  paid  for  under  the  old  system  ;  that  this  new  section  was 
added,  applying  the  Code  to  all  future  proceedings  in  the  old 
suits.  The  effect  of  this  on  section  303  was,  that  after  this,  the 
old  fee  bill  was  repealed  as  to  all  future  proceedings,  but  in 
force  as  to  all  past  proceedings.  It  can  hardly  be  questioned  that 
those  who  adopted  this  section  meant  it  to  apply  only  to  the 
mode  of  future  proceedings  in  such  suits,  and  did  not  mean  to 
disturb  anything  that  had  even  the  seeming  of  a  pre-existing 
right ;  otherwise  they  would  not  have  been  so  careful  to  con- 
fine the  effect  of  the  section  to  future  proceedings,  and  to 
include,  by  express  terms,  costs  in  appeal,  and  leave  them  out 
in  other  cases.  This  shows  that  they  did  not  intend  that  past 
costs  should  be  included  in  the  general  term  (future  proceed- 
ings) before  used. 

The  whole  question,  perhaps,  turns  more  properly  on  the 
meaning  of  the  decree  than  of  the  Code — that  gives  taxable 
costs,  expenses  and.  counsel  fees.  The  costs  intended  must  be 
such  as  would  cover  all  the  expenses  of  the  party,  legitimately 
incurred  in  the  suit,  and  those  would  include  for  the  attorney 
whatever  might  have  been  fairly  taxed  to  him,  as  the  services 
were  rendered  and  the  suit  progressed.  The  taxing  officer 
should  proceed  and  tax  the  costs  on  the  principles  above  stated, 
taxing  all  costs  prior  to  July,  1851,  under  the  Chancery  fee 
bill,  and  all  subsequent  costs  under  the  Code.* 

*  Upon  this  subject,  see  also  the  case  of  Vernon  a.  Me  Masters  post. 


XEW-YOKK.  125 


Allaire  a.  Lee. 


ALLAIRE  a.  LEE. 

• 
New  York  Superior  Court ;  Chambers,  December,  1854. 

ALLOWANCE. — WHAT  CONSTITUTES  A  TKIAL. 


When  a  plaintiff  voluntarily  submits  to  a  nonsuit  after  evidence  has  been  given  on 
both  sides,  and  while  the  defendant's  counsel  is  summing  up,  it  cannot  be 
objected  to  an  application  by  the  defendants  for  an  allowance,  under  §  308  of  the 
Code,  that  a  trial  has  not  been  had. 

Motion  for  an  allowance. 

0 
After  the  evidence  in  the  action  had  been  closed,  and  while 

the  defendant's  counsel  was  addressing  the  jury,  the  plaintiff's 
counsel  proposed  to  submit  to  a  nonsuit,  and  was  nonsuited. 
The  defendants  moved  for  an  allowance  under  §  308  of  the 

\^*          t*^- 

Code.    It  was  objected  that  no  trial  had  been  had. 

£^<L 

§ 

OAKLET,  C.  J.  —  This  is  a  proper  ca.se  for  making  an  allow- 
ance, unless  the  objection  made  to  it,  was  well  taken.  The 
defendants  have  recovered  a  judgment.  A  regular  trial  was 

l    "        -         ts. 

had,  witnesses  were  examined  by  both  parties,  and  after  the 
evidence  was  closed,  the  plaintiff  was  nonsuited.  If  he  had  C^\ 
been  nonsuited  on  the  defendant's  motion,  without  any 
attempt  on  the  part  of  their  counsel  to  address  the  jury,  no 
one,  I  presume,  would  doubt  that  a  trial  had  been  had.  What 
took  place,  was  none  the  less  a  trial,  because  the  nonsuit  was 
voluntarily  submitted  to,  before  the  defendant's  counsel  had 
concluded  the  address  he  was  intending  to  make  to  the  jury. 
I  think  the  case  too  clear  to  need  illustration  or  argument.  A 
proper  allowance  will  therefore  be  made. 

(The  other  justices  to  whom  the  point  was  stated,  concurred). 


126  ABBOTTS'  PEACTICE  KEPOKTS. 

Thurston  a.  King. 

THURSTON  a.  KING. 

Supreme  Court,  first  District;  Special  Term,  December,  1854. 
SHERIFF'S  CERTIFICATE. — ISSUING  OF  EXECUTION. 

The  official  certificate  of  a  sheriff  of  another  State  is  not  evidence  in  this  State  of 

service  of  papers ;  his  affidavit  should  be  presented. 

Execution  cannot  issue  upon  a  judgment  after  the  death  of  the  judgment  creditor. 
The  remedy  of  the  executor,  is  properly  to  be  sought  by  original  action. 

Application  for  an  order  that  execution  issue. 
The  facts  sufficiently  appear  in  the  opinion. 

MITCHELL,  J. — Application  is  made  for  -an 'absolute  order 
that  execution  issue  upon  the  judgment  in  this  action.  The 
plaintiff's  attorney  showed  that  five  years  had  elapsed  since 
the  entry  of  the  judgment,  and  made  affidavit  that  the  judg- 
ment remained  due,  and  .that  the  defendant  was,  and  resided, 
in  Hamilton  County,  Ohio.  On  this  proof  he  obtained  an 
order  for  the  defendant  to  show  cause  why  execution  should 
not  issue,  and  that  the  notice  be  served  on  the  defendant  by 
publication  for  six  weeks  in  one  newspaper,  and  by  service  on 
him  by  the  sheriff  of  Hamilton  County,  Ohio.  He  now  pro- 
duces proof  of  such  publication,  and  a  certificate  of  the  sheriff 
of  that  county  of  the  personal  service  of  the  notice.  (Code,  § 
284). 

The  certificate  of  a  sheriff  in  our  own  State  is  proof,  because 
he  is  acting  under  his  official  oath.  But  a  sheriff  of  a  county 
in  Ohio,  when  he  serves  process  or  notices  from  our  State, 
does  it,  not  by  virtue  of  his  oath  of  office,  but  as  a  private 
individual ;  his  oath  relates  only  to  what  he  does  under  the 
laws  of  his  own  State.  He  should  therefore  make  his  affidavit 
of  service. 

The  papers  however  show  that  the  plaintiff  is  dead,  and  that 
his  attorney  who  is  acting  on  this  application,  is  his  executor. 
Before  the  Code  an  execution  could  not  issue  after  the  death 
of  the  plaintiff  unless  he  died  within  the  last  term  or  vacation ; 


NEW-YORK.  127 


Thurston  a.  King. 


but  it  was  necessary  for  a  scire facias  to  issue  to  revive  the 
judgment  and  authorize  execution  on  it.     The  Code,  while  it 
prevents  an  action  from  abating  by  death  during  its  pendency, 
(§  121)  does  not  allow  it  to  proceed  in  the  name  of  the  dece- 
dent any  more  than  the  old  law  did,  but  allows  it  to  be  con- 
tinued by  motion  or  supplemental  complaint  by  or  against  his 
representatives.     As  the  writ  of  scire  facias  is  abolished,  that 
ancient  remedy  can  no  longer  be  resorted  to.     But  the  same 
section  which  abolishes  it,  with  certain  other  writs,  declares 
that  "  the  remedies  heretofore  obtained  in  those  forms  may  be 
obtained  by  civil  action  under  the  provisions  of  that  chapter." 
(§  428).     Thus  it  was  intended  that  no  relief  should  be  lost, 
but  that  the  mode  of  obtaining  it  only  should  be  changed,  and 
that  that  mode  should  be  by  action.     From  the  language  used, 
— "  by  civil  action  under  the  provisions  of  this  chapter" — it 
would  be  supposed  that  special  provision  could  be  found  in 
that  chapter  for  every  case  where  relief  had   before   been 
obtained  by  scire  facias.     But  that  is  not  so,  and  the  only 
cases  specially  provided   for  are  usurpations   of  franchises. 
And  as  scire  facias  was  one  mode  of  testing  a  right  to  fran- 
chise and  quo  warranto,  and  information  in  nature  of  a  quo 
warranfo,  were  others,  and  this  section  abolishes  all  three  of 
these  ancient  remedies,  there  is  room  for  argument  that  the 
only  scire  facias  intended  to  be  abolished  was  that  wrhich  was 
of  the  same  nature  with  the  two  other  writs,  and  for  which 
this  chapter  specially  provides.     This,  however,  is  contrary  to 
the  general  understanding,  and  to  the  object  of  the  Code  in 
getting  rid  of  the  old  system,  and  to  the  broad  language  used 
in  this  section.     (Cameron  a.  Young,  6  Jlow.  Pr.  7?.,  372). 

The  plaintiff's  only  remedy  is  by  original  action,  or  perhaps 
under  a  liberal  interpretation  of  section  121,  by  motion  or  sup- 
plemental complaint.  The  safest  mode  would  be  by  action, 
and  as  "  the  remedies  heretofore  obtained  in  the  form  of 
scire  facias,  &c.,  may  be  obtained  by  civil  action,"  (Code,  § 
428),  the  executors  of  the  plaintiff  would  be  entitled  to  ask  for 
and  to  obtain  an  execution  to  be  issued  in  their  names,  to  be 
levied  of  any  lands  which  the  defendant  held  when  the  judg- 
ment was  docketed. 

The  present  application  is  denied. 


128  ABBOTTS'  PKACTICE  KEPOKTS. 

The  People,  upon  the  Relation  of  Jenkins  a.  The  Parker  Vein  Coal  Company. 


THE  PEOPLE,  upon  the  relation  of  JENKINS  a.  THE  PARKER 
VEIN  COAL  COMPANY. 

Supreme  C^urt,  First  District;  General  Term,  December,  1854. 
MANDAMUS. — TRANSFERS  OF  STOCK. 

A  mandamus  will  not  be  granted,  to  compel  a  moneyed  corporation  to  make  transfers 

of  stock. 
This  writ  is  only  allowed  for  the  purpose  of  enforcing  a  public  duty  owed  to  the 

State  in  which  it  issues. 

Application  for  a  mandamus. 

The  facts  on  which  the  application  was  based  appear  suffi- 
ciently in  the  opinion  of  Mr.  Justice  Mitchell. 

MITCHELL,  J. — The  complainants  show  that  they  own  stock 
in  the  Parker  Vein  Coal  Company,  and  have  sold  shares 
of  it  held  by  them,  and  bought  other  shares,  and  that  the  Com- 
pany refuses  to  allow  them  to  transfer  the  shares  on  the  books 
of  the  Company.  The  complainants  applied  at  special  term 
for  a  mandamus  to  compel  the  Company  to  allow  the  transfer 
in  both  cases.  The  motion  was  denied,  and  they  appeal. 

A  similar  application  in  Shipley  a.  The  Mechanics'  Bank, 
(10  Johns.  JR.,  484),  in  the  year  1813,  and  denied.  The  court 
said  that  the  applicants  had  an  adequate  remedy  by  an  action 
on  the  case, — that  it  was  not  a  matter  of  public  concern,  and 
there  could  be  no  necessity  of  possessing  the  identical  property, 
as  in  the  case  of  a  favorite  chattel,  pretium  affectionis, — and 
that  by  recovering  the  market  value  of  the  shares,  they  could 
be  replaced.  These  are  all  good  reasons,  and  equally  applica- 
ble to  this  case.  The  same  decision  was  again  made  in  1843, 
in  the  matter  of  the  Firemen's  Insurance  Co.  a.  The  Commer- 
cial Bank  of  Albany,  (6  Hill,  243),  and  on  the  ground  that 
when  a  corporation  improperly  refuses  to  transfer  stock,  the 
party  injured  has  an  ample,  though  not  a  special  remedy  by 
action.  When  the  applicant  has  such  remedy,  and  is  a  private 
person,  he  is  left  to  that  relief,  unless  he  claim  a  right  to 
exercise  an  office,  perform  a  public  service,  or  exercise  a 


XEW-YOKK.  129 


The  People,  upon  the  Relation  of  Jenkins  a.  The  Parker  Vein  Coal  Company. 

franchise,  or  the  defendant  holds  a  public  office  and  neglects 
to  perform  a  duty  prescribed  by  law,  and  which  is  imposed 
for  the  public  benefit,  and  is  not  a  mere  private  right.  Of  the 
last  class  was  the  case  of  the  People  v.  Shile,  (2  Bar~b.  S.  C. 
It.,  397  ;  and  see  the  remarks  of  Lord  Mansfield  as  quoted  by 
Judge  Edmonds  there,  at  p.  417). 

The  case  of  Kortwright  v.  The  Buffalo  Commercial  Bank,  (20 
Wend.,  91,  affd  22  Wend.,  348),  and  of  Pollock  v.  The  National 
Bank,  (3  Seld.,  274),  show  that  the  remedy  by  action  is  effec- 
tual and  readily  obtained. 

It  is  said  that  the  action  will  be  only  a  sort  of  suicide,  as 
the  stockholders  would  be  sueing  themselves.  The  fact  that 
the  applicants  own  other  stock  cannot  be  a  foundation  for 
giving  them  a  remedy  refused  to  all  other  parties  whose  stock 
the  company  will  not  transfer.  If,  as  suggested,  the  company 
is  insolvent,  the  applicants  will  be  better  off  in  a  suit  where 
they  recover  damages  and  hold  the  judgment  as  creditors, 
than  if  they  compelled  a  transfer  of  the  stock,  and  so  were  to 
be  postponed  to  all  creditors.  If  the  company  is  solvent,  the 
damages  which  they  will  recover,  will  be  a  full  compensation 
for  all  the  injury  which  they  sustain  by  loss  of  the  stock. 

There  is  also  another  difficulty  in  this  application.  The 
mandamus  partakes  of  the  character  of  &  public  writ — one  in 
which  the  people  are  someway  interested, — and  it  has  never 
been  allowed  except  for  the  purpose  of  controlling  those  who 
owe  a  public  duty  to  the  State  in  which  it  issues.  This  Com- 
pany is  incorporated  in  Maryland,  and  although  it  has  an 
officer  here,  and  may  be  sued  here  on  its  contracts  and  obliga- 
tions to  individuals  or  others,  yet  it  does  not  owe  allegiance  or 
public  duties  to  this  State,  or  according  to  the  laws  of  this 
State,  but  to  the  State  of  Maryland  according  to  the  laws  of 
that  State.  If  it  violates  its  charter,  the  remedy  should  be  in 
Maryland  and  not  here.  On  quo  warranto,  its  charter  could 
not  be  taken  away  here — and  while  it  does  not  violate  any 
law  of  our  State,  the  State  should  not  interfere  with  it. 

The  order  appealed  from  is  affirmed  with  costs. 

MORBIS,  J. — In  an  elaborate  opinion  based  upon  the  merits 
of  the  application  and  not  discussing  the  question  of  practice 
involved,  concurred  in  refusing  the  writ. 


130  ABBOTTS'  PRACTICE  REPORTS. 

De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


DE  AGREDA  a.  MANTEL.— MANTEL  a.  GUYNET. 

New  York  Superior  Court;  Special  Term,  December,  1854. 
(Original  and  cross  actions). 

JUDGMENT  UPON  APPEAL. — DOCKETING. — PROCEDURE  IN  CASE  OF 
DEATH  OF  PARTY. — LIABILITY  OF  REPRESENTATIVES. 

The  proper  form  of  judgment  of  affirmance  upon  appeal  from  the  special  to  the 

general  term,  defined. 
Application  to  correct  the  form  of  a  judgment  of  the  general  term  may  be  made  at 

special  term. 
The  test  of  the  right  to  docket  a  judgment  is  the  right  to  issue  execution  upon  it 

immediately. 
Judgment  upon  appeal  cannot  be  rendered  as  of  a  day  subsequent  to  the  death  of  a 

party  appellant  or  respondent. 

But  it  may  be  rendered  as  of  a  day  prior  to  his  decease. 
Except  that  a  day  cannot  be  selected  for  this  purpose,  upon  which  the  court  of 

appeal  could  not  have  been  in  session,  or  the  appeal  could  not  have  been  heard. 
Where  there  is  a  joint  contract  or  liability  and  one  party  is  dead,  the  other  only 

should  be  sued. 

Where  the  contract  or  liability  is  joint  and  several,  the  representatives  of  the  de- 
ceased are  necessary  parties. 
The  several  modes  by  which  the  representatives  of  a  deceased  party  in  interest  to 

an  obligation  of  the  latter 'class  may  be  made  parties  to  a  suit  upon  it  pending  at 

the  tune  of  his  death — pointed  out. 

The  personal  representatives  may  be  sued  as  soon  as  they  have  taken  out  letters. 
It  seems,  that  heirs  may  in  such  a  case  be  made  parties  immediately  on  the  decease 

of  their  ancestor,  for  the  mere  purpose  of  enabling  them  to  look  to  the  title  of  real 

estate,  and  protect  eventual  interests  which  they  might  have  in  the  personalty. 

Order  to  show  cause  why  plaintiff  in  the  cross  action,  who 
was  defendant  in  the  original  action,  should  not  have  certain 
relief. 

E.  H.  Owen  supported  the  order. 
J.  B.  Stevens  showed  cause. 

HOFFMAN,  J. — The  application  in  this  case  is  attended  with 
considerable  difficulty.  The  questions  arise  under  an  order  for 
John  B.  Mantel  to  show  cause  why  the  judgment  or  decree" 
settled  on  the  12th  day  of  July,  1854,  should  not  be  filed  with 


NEW-YORK.  131 


De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


the  clerk  of  the  court,  and  why  the  judgment  on  the  affirmance 
of  such  judgment  should  not  be  settled  bj  one  of  the  justices, 
and  so  amended  and  corrected,  as  to  confirm  the  same  to  the 
decision  of  this  court  on  the  determination  of  the  appeal ;  and 
why  the  docket  of  such  original  judgment  and  also  the  docket 
of  such  judgment  of  affirmance  in  the  clerk's  office  of  the  city 
of  New  York  should  not  be  vacated ;  and  why  the  heirs  or 
representatives  of  the  said  George  Guynet  should  not  be  made 
parties  to  these  actions ;  and  why  all  proceedings  in  these 
actions  on  the  part  of  the  said  John  B.  Mantel  should  not  be 
stayed  until  the  said  heirs  and  representatives  of  the  said 
George  Guynet  are  brought  in  as  parties  thereto  ;  or  why  the 
said  Joseph  S.  de  Agreda  should  not  have  such  other  or  further 
relief  as  he  may  be  entitled  to. 

All  proceedings  in  the  interim  were  stayed  by  this  order  to 
show  cause. 

The  facts  out  of  which  the  questions  arise  are  as  follows : 

Joseph  S.  de  Agreda  and  George  Guynet,  plaintiffs  in  the 
first  action,  were  purchasers  from  Mantel  of  the  premises  in 
question,  and  sought  a  recession  of  the  contract  of  sale.  Man- 
tel, plaintiff  in  the  second  or  cross  action,  sought  to  have  it 
enforced.  The  cause  was  sent  to  a  referee  to  hear  and  decide. 

A  judgment  was  entered  on  the  12th  day  of  July,  1854, 
founded  upon  the  report  of  the  referee.  It  was  entered  in  both 
suits,  and  adjudged  that  the  contract  of  sale  and  purchase 
mentioned  in  the  pleadings  was  binding,  and  should  be  carried 
into  effect,  and  that  therefore  the  relief  asked  in  the  complaint 
in  the  original  action  (the  first  above  mentioned)  should  be 
dismissed. 

The  judgment  entered  upon  the  report  of  the  referee  was  in 
substance  as  follows : 

Guynet  and  De  Agreda  were  ordered  to  accept  the  deed  of 
the  premises,  to  pay  the  sum  of  $15,054  94,  and  to  execute  a 
mortgage  for  the  balance  of  the  purchase  money  and  pay  the 
costs  within  fifteen  days. 

The  decree  then  proceeded,  that  in  case  of  default  of  such 
performance,  then  the  parties  were  to  pay  to  Mantel  the  said 
sum  of  $15,000,  and  also  the  further  sum  of  $30,000,  being  the 
balance  of  the  said  purchase  money,  which  by  the  contract 


132  ABBOTTS'  PRACTICE  EEPOETS. 

DC  Agrcda  a.  Mantel. — Mantel  a.  Guynet. 

was  to  have  been  secured  by  such  bond  and  mortgage,  with 
interest  from  the  2d  day  of  May,  1853,  to  the  date  of  the  deci- 
sion, amounting  to  the  sum  of  $31,890,  which  several  sums 
amount  in  the  aggregate  to  the  sum  of  $49,044  95,  with  inter- 
est thereon  and  costs,  and  in  default  thereof  that  the  premises 
mentioned  in  the  contract  be  sold  at  the  Merchants'  Exchange 
under  the  direction  of,'&c. 

Then  follow  provisions  as  to  the  mode  of  making  and  con- 
summating such  sale — directions  for  the  payment  of  the  said 
sum  of  money  out  of  the  proceeds — and  deposit  of  the  surplus, 
if  any,  with  the  clerk  of  the  court,  and  also  if  there  should  be 
a  deficiency,  that  the  same  should  be  specified  in  the  report  of 
sale,  and  Mantel  have  execution  therefor  according  to  the 
practice  of  the  court. 

In  November,  1854,  the  judgment  was  affirmed  by  the  general 
term,  and  the  judgment  then  entered  was  in  substance  as  fol- 
lows :  That  the  causes  were  brought- to  a  hearing  as  original 
and  cross  actions  upon  the  appeal  of  the  said  George  Gurnet 
and  Joseph  S.  de  Agreda,  taken  to  the  general  term  from  the 
decree  made  on  the  12th  day  of  July,  1854,  whereby  it  was 
ordered  and  adjudged,  among  other  things,  that  the  respond- 
ent recover  against  the  appellants  the  sum  of  $49,054  95,  with 
interest  from  the  10th  of  June,  1854,  together  with  costs  and 
allowance,  taxed  and  adjusted  at  the  sum  of  $490  05.  That 
after  hearing  counsel,  &c.,  it  was  ordered  and  adjudged  that 
the  judgment  and  decree  so  appealed  from,  be  in  all  respects 
affirmed  with  costs  ;  and  that  the  appellants  do  pay  respond- 
ent the  sum  of  $51,135,  being  the  aggregate  amount  of  the 
aforesaid  several  sums  with  interest  thereon  to  the  date  of  the 
decree,  together  with  costs  of  the  respondent  upon  the  appeal, 
adjusted  at  $122  07,  amounting  in  the  whole  to  the  sum  of 
$51,251 14,  and  that  the  respondents  have  execution  therefor 
according  to  law. 

Each  of  these  judgments  has  been  docketed  in  the  clerk's 
office  of  the  county  of  New  York,  the  one  on  the  12th  of  July, 
1854,  for  $49,535  ;  the  other  on  the  24th  of  November  of  that 
year,  for  $51,259  14. 

Guynet,  one  of  the  plaintiffs  in  the  original,  and  a  defendant 
in  the  cross  action,  was  on  board  the  Arctic,  which  waa 


NEW-YORK.  133 


De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


destroyed  on  the  27th  of  September,  1854,  and  that  date  may, 
for  the  present  questions,  be  taken  as  the  day  of  his  death. 

The  judgment  entered  on  the  report  of  the  referee  was 
entered  on  the  14th  of  July,  and  an  appeal  was  taken  on  behalf 
of  both  defendants  on  the  19th  of  that  month.  On  the  8th  of 
August  an  order  was  made  staying  all  proceedings  on  the  part 
of  Mantel,  upon  Guynet  and  De  Agreda  giving  security  in  the 
sum  of  $10,000.  The  appeal  was  noticed  for  hearing  for 
October  term,  1854,  which  commenced  on  the  2d  of  that 
month.  It  was  again  noticed  for  the  November  term,  and 
was  decided,  and  judgment  entered  on  the  18th  of  that  month 

No  suggestion  was  made  of  the  probable  death  of  Guynet 
until  the  twenty-second  (22)  of  November,  when  his  former 
attorney  gave'  notice  of  the  fact  of  his  having  been  in  the 
Arctic,  and  that  he  was  presumed  to  be  dead. 

Upon  these  facts  several  important,  and  to  some  extent 
novel  questions  have  arisen. 

'1st.  As  to  the  first  branch  of  the  application,  it  is  shown 
that  the  judgment  was  duly  filed,  and  the  attorney  of  De 
Agreda  was  in  this  instance  mistaken. 

2d.  I  consider  that  the  form  of  the  judgment  of  affirmance 
at  the  general  term  was  incorrect.  Although  an  execution 
would  no  doubt  be  restrained  to  the  single  amount  due,  yet 
there  appears  upon  the  record  two  judgments  for  the  same 
sum,  one  a  little  increased  by  interest  and  costs,  and  this  I 
think  is  at  least  irregular.  The  objection  to  it  strikingly 
appears,  when  we  notice  that  here  are  two  docketed  judgments 
for  double  the  actual  debt,  embarrassing  the  record  and  preju- 
dicing the  party. 

The  course  pointed  out  by  Justice  Barculo  in  Eno  v.  Crooke 
(6  How.  Pr.  I?.,  402),  is,  I  apprehend,  the  regular  practice.  He 
shows  the  distinction  between  an  appeal  from  an  inferior  to  a 
superior  tribunal,  and  one  from  the  special  to  the  general  term 
of  the  same  court.  In  the  latter  case  it  is  simply  declared  that 
the  court  is  satisfied  to  let  the  judgment  stand. 

The  judgment  pronounced  at  general  term  should  therefore 
have  been  merely  this  :  That  the  causes  having  been  brought 
to  a  hearing  as  original  and  cross  actions  upon  the  appeal  of 
;the  said  George  Guynet  and  Joseph  S.  de  Agreda  to  the  gene- 


134  ABBOTTS'  PRACTICE  REPORTS. 


De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


ral  term  of  this  court  taken  from  the  judgment  made  and 
entered  therein  on  the  12th  day  of  July,  1854,  thereupon  on 
hearing  of  counsel,  &c.  It  is  ordered  and  adjudged  that  such 
appeal  be  dismissed,  and  such  judgment  be  affirmed  with 
costs,  and  that  the  said  John  B.  Mantel,  the  respondent,  do 
recover  and  have  execution  for  guch  costs  when  adjusted  by 
the  clerk,  and  inserted  in  the  entry  of  this  judgment. 

It  follows  from  this  view,  that  the  second  docket  of  the 
judgment,  as  to  every  thing  at  any  rate,  except  the  costs, 
must  be  vacated.  Whether  it  can  stand  for  that  sum  will  be 
afterwards  noticed. 

Thus  far  I  see  little  difficulty.  The  original  judgment  was 
duly  entered.  The  judgment  of  affirmance  should  be  amended, 
and  the  docket  in  whole  or  in  part  vacated. 

The  application  for  this  amendment  can  be  made  at  the 
special  as  well  as  the  general  term.  (Ayres  v.  Colville,  9 
How.  Pr.  R.,  573  ;  Corning  v.  Powers,  Ibid.,  54). 

3d.  Upon  the  next  and  a  material  question,  I  am  of  opinion 
that  such  a  judgment  'as  has  been  here  made  cannot  be  dock- 
eted at  all.  There  can  be  no  docket  except  for  the  deficiency, 
when  that  shall  be  ascertained. 

•  Before  the  Revised  Statutes,  a  judgment  was  a  lien  upon 
lands  from  the  time  of  its  entry,  although  it  did  not  affect 
them  as  against  purchasers,  until  a  docket  (1  Rev.  Stats.,  p.  501), 
and  decrees  in  the  court  of  chancery  affected  personal  prop- 
erty, from  the  time  of  levy  upon  an  execution,  and  real  estate 
from  seizure  under  the  same.  The  Revised  Statutes  provided 
that  a  docket  should  affect  lands  under  decrees  from  its  date. 
(2  Rev.  Stats.,  360  ;  Norton  v.  Talmadge,  3  Edna.  R.,  310). 

The  docket  was  at  first  a  mere  -alphabetical  record  of  judg- 
ments, made  by  the  clerk  of  the  court.  By  the  statute  of 
1840,  (ch.  386,  §  25),  no  judgment  or  decree  could  be  a  lien 
upon  lands,  unless  it  was  docketed  in  the  office  of  the  clerk  of 
the  county  in  which  the  lands  were  situated.  Assistant  Vice- 
Chancellor  Sandford  held,  that  under  this  act,  lands  could  still 
be  sold  by  execution  out  of  this  court,  where  they  were  situ- 
ated in  the  county  of  New  Tork,  although  the  judgment  was 
not  docketed.  (Wheeler  v.  Hemans,  3  Sand.  C.  R.,  597).  As 
to  personal  property  no  docket  was  ever  necessary. 


NEW-YORK.  135 


De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


It  deserves  consideration,  however,  whether  an  execution 
can  be  issued  under  the  Code,  even  as  to  personal  property, 
unless  the  judgment  is  docketed.  The  sections  283  and  287, 
taken  together,  provide,  that  writs  of  execution  for  the 
enforcement  of  a  judgment,  are  to  be  issued  as  prescribed  by 
the  title  ;  and  that  an  execution  against  the  property  must  be 
issued  to  the  sheriff  of  the  county  when  the  judgment  is  dock- 
eted. To  what  sheriff  can  it  be  issued  if  there  is  no  docket  in 
any  county  ? 

In  Stoutenbergh  v.  Yandenbergh,  (7  How.  Pr.  12.,  233),  the 
court  consider,  that  by  the  true  construction  of  the  Code,  a 
docket  is  in  all  cases  necessary. 

The  282d  section  of  the  Code  provides,  that  upon  filing  a 
judgment  roll  upon  a  judgment  directing  in  whole  or  in  part 
the  payment  of  money,  it  may  be  docketed  with  the  clerk  of 
the  county  where  it  was  rendered,  and  in  any  other  county, 
upon  filing  a  transcript,  &c. 

The  second  subdivision  of  the  16th  section  of  the  Revised 
Statutes  (2  Rev.  /Stats.,  361),  shows,  that  a  docket  could  only 
be  had  when  a  decree  is  for  a  fixed  amount  of  debt,  damages, 
costs,  or  other  sum  of  money. 

In  the  cases  of  Crewley  v.  Graham,  (8  Paige,  480),  and  TJie 
Bank  of  Rochester  v.  Emerson,  (10  Paige,  116),  the  practice 
of  inserting  a  direction  to  pay  a  deficiency,  and  that  the  party 
have  execution  in  mortgage  cases,  is  recognized ;  but  also  that 
no  execution  could  issue  until  report  and  confirmation. 

In  Cobb  v.  Thornton,  (8  How.  Pr.  P.,  66),  Justice  Marvin 
held,  that  the  Revised  Statutes  respecting  the  foreclosure  of 
mortgages  were  still  in  force.  He  refers  to  the  preceding  cases, 
and  to  the  rule,  that  although  a  conditional  provision  for  pay- 
ment of  the  deficiency  is  inserted  in  the  decree,  no  execution 
can  issue  until  the  sale  settles  the  amount  of  the  deficiency 
and  a  report  has  been  made. 

It  appears  to  me,  that  a  test  of  a  right  to  docket  a  judgment, 
is  a  right  to  issue  an  execution  upon  it  immediately.  None 
can  be  issued  in  this  case  until  the  sale  has  taken  place.  In 
the  interim  the  plaintiff  Mantel  has  the  security  of  the  prop- 
erty, and  that  of  the  undertaking  given  upon  the  appeal. 


136'  ABBOTTS'  PRACTICE  REPORTS. 

De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 

4th.  The  next  question  relates  to  the  abatement  of  the 
action. 

The  cases  which  bear  upon  this  subject  are,  Rogers  v.  Pater- 
son,  (4  Paige,  409),  The  Bank  of  the  United  States  v.  Weis- 
erger,  (2  Peters,  481),  and  Yroom  v.  Ditmas,  (5  Paige,  528), 
and  they  settled,  that  where  an  appeal  had  been  taken  and  the 
complainant  died  after  it  was  in  readiness  for  hearing,  but 
before  argument,  the  order  upon  the  appeal  might  be  entered 
nunc pro  tune  as  of  a  day  previous  to  the  death.  In  Rogers  v. 
Paterson,  the  decree  in  the  court  of  errors  was  made  and  dated 
as  of  a  day  after  the  party's  death,  and  was  considered  to  be 
valid  by  the  chancellor,  he  adding,  however,  that  if  it  was 
error,  the  court  above  could  alone  correct  it.  See  also  the 
case  of  Bogardus  v.  Trinity  Church,  28th  October,  1833,  (1 
Hoffman's  Ch.  Pr.,  390). 

The  chancellor  in  Rogers  v.  Paterson  cites  however  much 
authority  to  prove  that  it  is  not  essential  to  revive  a  cause  in 
the  Court  of  Errors  where  death  occurs  after  an  appeal  or  writ 
of  error  is  perfected.  And  in  Hastings  v.  McKinley  (8  How. 
Pr.  R.,  175),  the  Court  of  Appeals  appears  to  approve  of  this 
practice.  In  Miller  v.  Green  (7  How.  Pr.  _Z?.,  159),  Justice  Harris 
treats  it  as  settled  practice  on  an  appeal  from  the  special  to 
the  general  term  of  the  Supreme  Court ;  and  in  that  case  the 
party,  appellant  and  defendant,  died  before  argument  of  the 
appeal,  but  after  it  was  perfected.  The  case  is  precisely  like 
the  present.  The  judgment  was  ordered  to  be  entered  as  of  a 
day  anterior  to  his  death. 

See  also  as  to  the  course  in  the  House  of  Lords,  Thorpe  v. 
Malingley  (1  Phillips  Rep.,  200). 

So  Justice  Wells  in  Holmes  v.  Honie  (8  How.  Pr.  R.,  384), 
observes,  that  it  was  never  regular  either  by  common  law  or 
statute  to  enter  a  judgment  against  a  person  after  his  death  ; 
and  he  notices  the  practice  of  entering  where  judgment  nisi 
had  been  had,  and  a  final  judgment  had  been  delayed  by  a 
case  or  bill  of  exceptions  ;  but  that  in  such  and  similar  cases 
the  judgment  was  ordered  to  be  entered  of  a  day  when  the 
party  was  living,  so  that  the  record  would  show  that' fact.  See 
also  Crawford  v.  "Wilson  (4  Barb.,  523). 

Such  a  judgment  then  might  in  ordinary  cases  be  entered 


KEW-YOKK.  137 


De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


upon  an  appeal  like  the  present.    But  in  this  case  a  great  diffi- 
culty arises  from  special  circumstances. 

The  Code  authorizes  the  court  to  appoint  general  and  special 
terms  (§  34.)  The  court  appointed  such  by  rule  for  the  first 
Monday  of  every  month,  except  July,  August,  and  September ; 
and  ordered  that  at  the  conclusion  of  June  term  the  court 
would  appoint  general  terms,  for  the  hearing  of  appeals  from 
orders  made  on  non-enumerated  motions  only,  to  be  held  during 
the  vacation.  This  was  done  in  June  last,  and  a  general  ter«n 
appointed  for  the  31st  of  August  and  the  30th  of  September. 
The  31st  of  August  was  then  the  only  general  term,  after  the 
appeal  in  this  case,  and  before  the  party's  death.  But  the 
appeal  could  not  have  been  then  heard  except  by  consent. 

Hence,  if  the  position  cannot  be  supported,  that  the  judg- 
ment on  the  appeal  was  not  erroneous,  although  entered  on  the 
18th  of  November  after  the  party's  death,  (that  to  remain  as 
its  actual  date),  such  judgment  was  irregular,  and  the  case  as 
to  Guynet  must  be  treated  as  it  stood  on  the  8th  day  of  August 
when  the  appeal  was  perfected. 

I  have  concluded  that  this  would  be  irregular,  if  not  void. 
In  a  tribunal  of  ultimate  resort,  on  the  final  decision  of  a 
cause,  it  may  be  warrantable.  But  the  theory  of  an  appeal 
from  a  judgment  at  special  term  (and  this  is  the  same)  to  the- 
general  term,  is  a  rehearing  in  the  same  court  before  other  or 
additional  judges.  And  then  it  would  appear  that  judgment 
is  given  by  the  court  as  of  a  day  when  it  could  not  have  been 
in  session  to  make  such  a  judgment. 

It  remains  to  consider  what  on  this  basis  are  the  rights  of 
the  parties. 

The  Code  in  terms  declares  that  no  action  shall  abate  by  the 
death,  marriage,  or  other  disability  of  a  party,  if  the  cause  of 
action  survive  or  continue  (§121).  In  effect  this  is  an  adoption 
of  the  chancery  interpretation  of  abatement— that  it  is  merely 
an  interruption  of  the  suit,  suspending  proceedings  in  whole  or 
in  part,  according  to  the  circumstances  of  each  case,  and  the 
position  of  the  deceased  party  on  the  record.  (Hoxie  v.  Carr, 
Sumner's  I2ep.,  173). 

The  case  must  then  be  taken  up,  as  it  stood  after  the  appeal 


138  ABBOTTS'  PRACTICE  REPOETS. 

De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 

was  perfected,  and  as  if  no  affirmance  had  been  had  at  the 
general  term  as  to  Guynet  and  his  rights. 

The  counsel  for  the  plaintiff  Mantel  here  raises  the  point, 
that  no  proceedings  by  way  of  revivor  or  otherwise  (except  a 
suggestion  on  the  record  of  the  death)  are  requisite — that  the 
whole  cause  of  action  has  survived  as  against  De  Agreda,  and 
that  the  judgment  may  be  fully  executed  by  a  sale  of  the 
whole  property,  and  all  the  interests  of  each  party  therein, 
without  any  regard  to  the  heirs  or  executors  of  Guynet. 

Let  the  case  be  considered  just  as  if  the  plaintiff  Mantel  had 
brought  his  action  to  enforce  the  contract  after  Guynet's 
death.  "Who  ought  then  to  have  been  made  parties? 

The  following  authorities  establish  that  in  general  where 
there  is  a  joint  contract  or  liability,  and  one  party  is  dead,  the 
survivor  alone  should  be  sued.  There  are  some  exceptions  to 
this  rule  under  special  circumstances :  (Lawrence  v.  The  Trus- 
tees of  Leake,  &c.,  2  Denio,  580 ;  Garret  v.  Shuster,  1  Wen- 
dell, 148  ;  Brewster  v.  Patterson,  4:  Edwards,  466.  And  in 
the  Court  of  Appeals,  Parker  v.  Jackson,  16  Barbour,  41 ; 
Higgins  v.  Rockwell,  2  Duer,  651 ;  Voorhies  v.  Baxter,  1 
Allots  Pr.  B.,  43). 

It  deserves  notice  as  to  the  three  last  cases,  being  since  the 
Code,  that  the  Codifiers  supposed  they  had  changed  the  rule 
in  accordance  with  the  English  authorities.  See  them  cited  in 
the  assistant  vice-chancellor's  opinion,  (2  Denio,  580).  In 
their  observations  upon  sections  97  and  98,  (now  117  and  118), 
they  say,  that  these  will  enable  a  surviving  partner  and  the 
representative  of  a  deceased  partner  to  sue  together,  whenever 
desirable,  and  will  enable  a  plaintiff  to  exhaust  in  one  suit  his 
remedies  against  a  surviving  partner,  and  the  representatives 
of  a  deceased  partner.  The  last  clause  of  the  118th  section, 
beginning  with  the  words,  "  or  who  is  a  necessary  party,"  was 
added  in  1849.  The  addition  does  not  certainly  weaken  the 
language  which  the  Codifiers  supposed  covered  the  case. 

But  it  appears  to  me  that  there  is  a  sufficient  ground  to  dis- 
tinguish the  present  case  from  those  cited.  In  those  cases,  the 
entire  legal  right  to  the  property  of  the  partnership  survives. 
The  fund  in  the  survivor's  hands  is  the  first  fund  to  be  applied 
to  the  discharge  of  the  debt ;  but  here  there  is  no  such  ele- 


NEW-YORK.  139 


De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


ment.  The  purchase  does  not  appear  to  have  been  made  on 
joint  account  for  any  partnership  or  joint  purpose.  These 
parties  would  be  tenants  in  common  if  the  purchase  had  been 
consummated. 

It  may  be  useful  to  advert  to  some  acknowledged  rules  of 
the  court  of  chancery,  tending  to  illustrate  this  question. 

Thus,  on  the  death  of  a  vendor,  both  his  devisees  or  heirs, 
and  his  personal  representatives,  are  necessary  parties  to  a  bill 
for  performance,  the  former  to  make  a  conveyance  and  the 
latter  to  give  a  discharge  of  the  purchase-money,  (Townsend  v. 
Champermorne,  9  Price,  130) ;  and  so  the  converse  of  the  rule 
is  true.  If  the  vendee  dies,  the  personal  representative  must 
be  brought  in,  as  he  is  to  pay  the  money,  and  the  devisee  or 
heir,  as  he  is  to  receive  the  conveyance  and  look  to  the  title. 
(Ibid,  and  see  Champion  v.  Brown,  6  John.  Ch.  Rep.,  398). 

I  may  observe  here,  that  the  cases  of  Merserau  v.  Kyerss,  3 
Comstock,  261,  and  Stuart  v.  Kissam,  11  Harbour,  282,  do  not 
appear  to  affect  the  present  question;  they  relate  to  the 
general  creditors  of  an  estate  seeking  to  unite  the  represent- 
atives of  the  real  and  personal  property  in  one  action. 

De  Agreda  and  Guynet,  under  this  agreement  and  the  prin- 
cipal of  a  court  of  equity,  were  equitable  tenants  in  common 
of  this  property.  In  relation  to  their  own  action  then,  the 
case  of  Fallowes  v.  Williamson,  11  Vesey,  306,  would  apply. 
There  the  representatives  of  one  tenant  in  common  and  a  co- 
plaintiff  filed  a  bill  of  survivor,  and  were  obliged  to  make  the 
co-plaintiff  a  party,  as  well  as  the  defendant.  And  in  this 
point  of  view,  while  it  may  be  said,  that  their  contract  to  pay 
has  the  form  of  a  joint  contract,  their  interest  and  right  in  the 
property  to  be  received,  and  the  subject  of  the  suit,  is  joint 
and  several.  Another  and  unquestioned  series  of  cases  estab- 
lish, that  the  survivor  and  the  representatives  may  then  be 
joined.  (Pier son  v.  Tester,  3  Swainston,  139,  n.  •  Augerstein 
v.  Clarke,  Ibid.,  147,  n.  ;  Haywood  v.  Overs,  6  Mad.  Rep., 
113  ;  Madox  v.  Jackson,  3  Atkins.,  406 ;  Bland  v.  "Winter,  1  /& 
&  St.,  246). 

It  results  from  the  following  observations,  that  the  judgment 
cannot  be  carried  into  effect,  so  as  to  sell  the  whole  property, 


140  ABBOTTS'  PRACTICE.  REPORTS. 

De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 

and  to  recover  the  whole  if  any,  deficiency,  until  the  represent- 
atives of  Guynet  are  before  the  court. 

The  representatives  of  Guynet  may,  of  course,  make  them- 
selves parties  to  each  suit,  by  a  motion,  under  the  121st  section 
of  the  Code.  If  they  neglect  it,  then  the  remaining  plaintiff 
may,  under  the  Code,  or  at  any  rate  under  the  Eevised  Stat- 
utes, make  the  representatives  of  Guynet  defendants  in  the 
original  suit  when  eighty  days  have  expired  from  his  death. 
(2  Rev.  Stat.,  185,  §  117).  And  if  De  Agreda  neglect  it,  then 
Mantel  can  petition  to  have  the  suit  revived  in  their  names,  or 
that  the  action  be  dismissed  so  far  as  their  interests  are  con- 
cerned. (5  Hid.,  §  118;  5  SandforcPs  Rep.,  S.  Ct.,  648). 
Besides,  after  a  decree,  a  defendant  can  revive  a  suit  without 
the  aid  of  the  statutes.  (Lorillard  v.  Dios,  9  Paige,  394,  and 
cases). 

Again,  as  plaintiff  in  the  cross-action,  Mantel  has  a  course 
open  to  him  under  the  Revised  Statutes,  (§  108, 109,  and  sub- 
sequent sections),  to  bring  in  the  representatives  of  the  defend- 
ant. (See  1  Hoffman's  Practice,  373).  It  is  also  the  rule, 
that  a  bill  of  revivor  might  be  resorted  to  as  well  as  the 
petition  under  the  statute.  (2  Paige,  380 ;  Douglas  v.  Sher- 
man ;  Humphreys  v.  Holls,  Jacobs'  Rep.,  p.  73). 

The  personal  representatives,  as  before  observed,  would  be 
necessary  parties,  and  they  may  be  sued  as  soon  as  they  have 
taken  out  letters  probate  or  of  administration.  (Butts  v. 
Genune,  5  Paige,  258).  Although  the  heirs  cannot  be  sued 
until  the  expiration  of  three  years,  for  payment  of  a  debt,  out 
of  lands  descended,  yet  I  do  not  think  this  would  form  an 
objection  to  making  them  parties,  solely  with  a  view  that  they 
may  look  to  the  title,  and  aid  in  protecting  any  eventual 
rights  they  might  have  in  the  personal  estate,  no  decree  for 
any  deficiency  being  made  against  them. 

It  may  be  that  the  course  of  proceeding  under  the  376th 
and  subsequent  section  of  the  Code,  may  be  pursued  in  this 
case,  and  the  personal  representatives  of  Guynet  be  brought 
in  to  have  the  judgment  enforced  against  the  assets.  The 
heirs  might  perhaps  be  made  parties  to  the  summons,  not  to 
have  their  property  descended  then  made  liable,  but  to  look 
to  the  title  and  conveyance. 


tfEW-YOKK.  141 


De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 


There  remains  one  important  question,  viz.,  whether  the 
108th  section  of  the  Statute  in  connection  with  the  122d  sec- 
tion of  the  Code,  does  not  enable  Mantel  to  proceed  and 
execute  the  judgment,  so  far  as  De  Agredrfs  interests  are  con- 
cerned. 

The  108th  section  of  the  statute  is,  that  where  one  or  more 
of  the  complainants  or  defendants  shall  die,  and  the  cause  of 
action  not  survive,  the  suit  shall  abate  only  as  to  the  person 
or  persons  so  dying,  and  the  surviving  parties  may  proceed 
without  reviving  the  suit. 

The  122d  section  of  the  Code,  provides  that  the  court  may 
determine  any  controversy  between  the  parties  before  it, 
when  it  can  be  done  without  prejudice  to  the  rights  of  others, 
or  by  saving  their  rights,  but  when  a  complete  determination 
of  the  controversy  cannot  be  had  without  the  presence  of 
other  parties,  the  court  must  cause  them  to  be  brought  in. 

And  by  the  274th  section,  in,  an  action  against  several 
defendants,  the  court  may  in  its  discretion,  render  judgment 
against  one,  or  more  of  them,  leaving  the  action  to  proceed 
against  the  others  whenever  a  several  judgment  may  be  proper. 
If  a  several  judgment  could  be  taken  for  a  sale  of  a  moiety 
of  the  land,  and  a  recovery  of  a  moiety  of  the  deficiency,  a 
separate  execution  can  issue  upon  the  judgment  already 
obtained,  though  in  form  against  both. 

In  Leggett  v.  Dubois,  (2  Paige,  212),  the  bill  was  for  the 
specific  performance  of  an  agreement  to  convey  land,  brought 
against  the  seller  and  his  trustee.  The  land  had  been  con- 
veye'd  to  other  defendants  with  notice  as  alleged.  Sellon  died 
without  answering.  The  chancellor  ordered  the  complainant 
to  proceed  within  sixty  days  to  revive  the  suit  against  the 
legal  representatives  of  Sellon,  or  consent  to  proceed  against 
the  surviving  defendants  only,  or  the  injunction  should  be 
dissolved.  In  commenting  upon  the  108th  section,  he  observes, 
that  it  provides  for  cases,  where  some  of  the  parties  survive 
and  the  rights  of  the  parties  dying  do  not  survive  to  them, 
but  some  other  person  becomes  vested  with  their  rights  and 
interests,  or  is  subject  to  the  liability  of  those  who  are  dead. 
In  such  a  case  the  complainant  may  proceed  without  making 
such  persons  parties,  provided  a  decree  can  be  made  between 


142  ABBOTTS'  PRACTICE  REPORTS. 

De  Agreda  a.  Mantel. — Mantel  a.  Guynet. 

the  surviving  parties  without  bringing  such  persons  before  the 
court.  The  decree  in  such  case  will  not  affect  those  in  whom 
the  rights  of  the  deceased  parties  have  become  vested. 

In  Carey  v.  Da  vies,  (1  Ifogan's  Rep.  16),  the  master  of  the 
rolls  said,  "  The  death  of  a  party  abates  a  suit  only  as  to  his 
interest.  To  this  as  a  general  rule  I  perfectly  agree,  but  with 
this  addition,  that  although  it  abates  the  suit  only  as  to  his 
interest,  yet  it  more  or  less  renders  the  suit  defective,  in  pro- 
portion as  the  interest  of  «the  party  dying,  was  connected  with 
the  other  rights  in  litigation  in  the  cause. 

I  have  no  doubt  of  the  right  of  De  Agreda,  the  co-defend- 
ant, to  move  in  this  case  for  the  correction  of  the  decree,  and 
to  vacate  the  docket.  If  any  prejudice  could  arise  to  the 
rights  of  those  who  may  represent  Guynet,  it  could  be  guarded 
against  in  the  order,  but  this  cannot  be. 

The  result  of  my  examination  of  this  complicated  case  is — 

That  the  judgment  of  affirmance  by  the  general  term  must 

'be  vacated  as  to  the  party  George  Guynet,   and  must   be 

amended  and  entered  as  to  the  party  De  Agreda  in  the  manner1 

before  stated,  and  declared  to  be  and  remain  in  full  force  as 

to  him. 

That  both  dockets  of  the  judgment  made  at  the  clerk's  office 
in  New  York  be  vacated  and  discharged  without  prejudice  to 
any  application  on  the  part  of  Mantel  to  increase  the  security 
given  on  the  appeal  so  far  as  relates  to  the  said  De  Agreda. 

That  the  proceedings  to  execute  the  judgment  as  against  the 
estate  and  interests  of  the  said  Guynet  in  the  premises  or 
otherwise,  be  stayed  until  his  representatives  be  brought  before 
the  court  according  to  its  practice. 

That  the  said  Mantel  be  at  liberty  to  execute  such  judgment 
by  a  sale,  in  the  manner  therein  directed,  of  all  the  undivided 
share,  right,  title  and  interest  of  the  said  De  Agreda  in  and  to 
the  premises  mentioned  in  such  judgment,  and  to  proceed 
against  him  for  the  one-half  part  of  any  deficiency  which  may 
be  ascertained  upon  such  sale. 

That  neither  party  have  costs  as  against  the  other  of  the 
present  application. 


NEW-YORK.  143 


Appleby  a.  Strang. 


APPLEBY  a.  STRANG. 
New  York  Common  Pleas ;  General  Term,  December,  1854. 

POWER  OF  JUSTICE  OP  DISTRICT  COURT.  —  CANNOT  OPEN  HIS 

JUDGMENT. 

A  justice  is  entitled  to  proceed  with  a  case  immediately  upon  the  expiration  of  the 

time  named  in  the  summons. 
Where,  so  proceeding,  he  has  rendered  judgment,  he  has  no  power  to  open  it  upon 

the  defendant's  coming  immediately  after  and  asking  to  be  let  in  to  defend. 

Appeal  from  a  judgment  of  a  district  court. 

The  suit  was  brought  in  the  Sixth  District  Court.  The  sum- 
mons was  returnable  at  9  A.M.  It  is  the  rule  of  the  justice  of 
that  court  to  wait  half  an  hour  after  the  time  of  return,  except 
where  he  is  satisfied  that  the  opposite  party  does  not  intend  to 
appear,  in  order  to  give  time  for  appearance.  Through  inad-* 
Vertence  it  would  seem,  this  case  was  called  at  about  twenty 
minutes  past  nine  ;  the  plaintiff  proved  his  case  and  the  justice 
rendered  judgment  in  his  favor.  Within  the  half  hour  the 
defendant  appeared,  and  moved  to  open  the  case  that  he  might 
be  allowed  to  defend.  The  plaintiff  objected,  and  the  justice 
sustained  the  objection. 

The  defendant  appealed  from  the  judgment  rendered  for 
plaintiff. 

JV.  W.  Clason  for  appellant. 
George  A.  Shufeldt  for  respondent. 

DALY,  J. — The  justice  had  the  right  to  proceed  with  the 
case  immediately  upon  the  expiration  of  the  time  named  in  the 
summons ;  and  having  done  so,  and  rendered  judgment,  he  had 
no  power  to  open  it.  As  it  appears  from  his  return,  that  he 
had  adopted  the  rule  of  waiting  half  an  hour  in  ordinary  cases 
for  the  appearing  of  the  defendant,  we  might  give  relief  upon 
an  affidavit  showing  that  the  defendant  was  misled  thereby, 
and  setting  forth  such  a  defence  as  might  satisfy  us  under  the 
statute,  that  manifest  injustice  has  been  done.  But  there  was 
no  error  in  entering  the  judgment,  and  it  should  be  affirmed. 


144  ABBOTTS'  PRACTICE  REPORTS. 

Harpell  a.  Irwin. 

HARPELL  a.  IRWIN. 

'New  York  Common  Pleas  ;  General  Term,  December,  1854. 
EXAMINATION  OF  PARTIES. — COUNTER-CLAIM. 

Where  a  plaintiff  calls  the  defendant  as  a  witness  to  prove  the  plaintiff's  claim,  and 
the  defendant  on  a  cross-examination  in  his  own  behalf  proves  a  counter-claim  as 
set  up  in  his  answer,  the  plaintiff  may  be  examined  in  reference  to  the  evidence 
given  by  the  defendant  on  the  subject  of  the  counter-claim. 

Appeal  from  a  judgment  of  a  district  court. 
The  facts  are  stated  in  the  opinion. 

INGRAHAM,  F.  J. — This  case  is  submitted  without  points. 
The  notice  of  appeal  states  the  causes  of  appeal  to  be, 

1.  That  the  judgment  is  erroneous. 

2.  That  the  court  erred  in  excluding  the  plaintiff  from  testi- 
,  fying  in  his  own  behalf. 

3.  That  judgment  for  defendant  was  erroneous  and  without 
evidence. 

Upon  the  trial  the  plaintiff  called  the  defendant  as  a  witness 
to  prove  the  plaintiff's  claim.  He  admitted  the  plaintiff's 
claim  to  be  correct.  On  cross-examination  he  stated  he  had 
been  in  the  habit  of  selling  the  plaintiff  goods.  That  in  Sept., 
1852,  his  claim  against  the  plaintiff  amounted  to  $89,39.  That 
the  plaintiff  purchased  the  goods  and  they  were  delivered  to  him. 

The  plaintiff  then  offered  himself,  to  contradict  the  defend- 
ant's testimony  on  cross-examination.  He  was  excluded,  and 
the  justice  gave  judgment  for  the  defendant  for  the  balance  of 
his  claim  after  deducting  the  plaintiff's  bill. 

There  can  be  no  doubt  that  the  justice  was  correct  in  his 
decision  upon  the  facts  as  proven  before  him.  The  claims  of 
plaintiff  and  defendant  were  proven  by  the  defendant  alone, 
and  if  he  was  to  be  credited  as  to  one,  he  could  not  be  disbe- 
lieved as  to  the  other,  when  his  testimony  was  uncontradicted. 

The  only  question  then  is,  whether  the  justice  was  correct  in 
excluding  the  plaintiff's  testimony.  Section  395  of  the  Code 
allows  a  party  to  call  his  Adversary  as  a  witness,  and  such 
adversary  may  then  be  examined  on  his  own  behalf.  If  he 


NEW-YORK.  145 


Duguid  a.  Ogilvie. 


testify  to  new  matter  not  responsive  to  the  inquiries  put  on  the 
direct  examination,  or  necessary  to  explain  that  testimony,  or 
to  discharge  when  his  answers  charge  himself,  the  adverse 
party  may  be  a  witness. 

Here  the  defendant  was  called  to  prove  the  plaintiff's  claim, 
and  after  doing  so,  he  testified  to  a  claim  due  from  the  plain- 
tiff to  him,  to  double  the  amount  of  the  plaintiff's.  This  was 
clearly  new  matter,  not  responsive  to  the  inquiries  put  by  the 
plaintiff,  or  necessary  to  explain  or  qualify  his  previous 
answers.  Nor  would  it  come  within  the  clause  "  necessary  to 
discharge  when  his  answers  charge  himself."  That  clause 
refers  to  the  statement  of  facts  showing  that  the  claim  he 
proves  had  been  discharged.  Such  for  example  would  be  the 
case,  if  after  proving  a  claim  he  should  testify  to  payment  or 
a  release,  or  any  other  matter  showing  a  discharge  of  the  claim 
so  proven. 

But  when  the  party  sets  up  a  counter-claim  as  a  defence, 
and  when  called  as  a  witness,  on  cross-examination  proves- 
such  counter-claim,  the  plaintiff  then  has  a  right  to  testify  as  to 
such  counter-claim.  (Myers  a.  McCarthy,  2  Sand.  8.  C.  JR.,  399). 

More  especially  so,  when  as  in  this  case  the  defendant  asks 
for  a  judgment  against  the  plaintiff  upon  such  counter-claim. 

The  justice  erred  in  excluding  the  plaintiff  from  testifying, 
and  the  judgment  must  be  reversed. 


DUGUID  a.  OGILVIE. 
New  York  Common  Pleas  ;  General  Term,  December ;  1854. 

"POWERS  OF  REFEREE. — RE-OPENING-  CAUSE. — PRESUMPTION  OF 
PAYMENT  REBUTTED. 

"Where  a  cause  has  been  submitted  to  a  referee,  he  may,  if  he  thinks  the  purposes 
of  justice  require  it,  re-open  the  case  to  hear  further  testimony. 

Where  a  plaintiff  who  claimed  to  recover  for  services  rendered,  gives  his  promissory 
note  to  the  defendant  long  after  the  rendering  of  the  services,  and  pays  it  when 
it  falls  due,  it  creates  a  presumption  that  no  previous  indebtedness  existed  on  the 
part  of  the  defendant  to  the  plaintiff. 

But  this  presumption  may  be  rebutted  ;  e.  g.  by  showing  that  the  note  was  given 
for  a  temporary  loan. 

Appeal  from  a  judgment  upon  the  report  of  a  referee. 

10 


146  ABBOTTS'  PEACTICE  KEPOKTS. 

Duguid  a.  Ogilvie. 

This  was  an  action  brought  to  recover  for  services  rendered 
by  plaintiff  to  the  defendant.  The  issues  were  referred.  The 
plaintiff  having  proved  his  services,  the  defendant  adduced 
evidence  tending  to  depreciate  the  value  of  them,  and  also 
showed,  that  some  time  after  the  services  were  rendered,  the 
plaintiff  gave  his  note  to  the  defendant  for  seventy-five  dol- 
lars, and  paid  it  at  maturity.  The  testimony  was  here  closed 
on  both  sides,  and  the  cause  was  summed  up  and  submitted. 
The  counsel  for  defendant  contended  that  the  making  and  pay- 
ment of  the  note  by  plaintiff,  was  decisive  evidence  that  at 
that  time  the  defendant  was  not  indebted  to  the  plaintiff. 

After  the  lapse  of  several  days,  the  referee  notified  the  par- 
ties to  appear ;  and  stated  that  he  should  allow  the  plaintiff 
to  produce  further  testimony  as  to  the  consideration  for  the 
note,  and  the  circumstances  attending  the  making  it.  The 
defendant's  counsel  objected  to  any  further  testimony,  on  the 
ground  that  the  case  had  been  closed  and  submitted.  The 
referee  overruled  the  objection,  and  the  counsel  excepted. 

The  plaintiff  then  called  the  defendant  as  witness ;  who 
testified  that  the  note  was  given  for  money  lent  by  him  to  the 
plaintiff;  that  the  plaintiff  asked  him  for  the  loan  of  some 
money,  saying  that  he  was  very  much  in  need  of  it,  and  would 
pay  extra  interest  for  it ;  and  that  he  accordingly  lent  plaintiff 
the  seventy-five  dollars,  taking  his  note ;  but  did  not  charge 
him  any  extra  interest. 

The  referee  reported  in  favor  of  the  plaintiff;  deciding  that 
the  giving  of  the  note  was  sufficiently  explained  by  the  facts 
proved ;  and  that  under  the  circumstances  it  was  not  sufficient 
evidence  that  defendant  was  not  then  indebted  to  the  plaintiff. 

To  this  decision  the  defendant's  counsel  excepted.  Judg- 
ment having  been  entered  for  plaintiff,  the  defendant  appealed 
to  the  general  term. 

J.  W.  White,  for  appellant,  cited  De  Freest  v.  Blooming- 
dale,  (5  Den.  304). 

R.  Goodman,  for  respondent,  cited  Sperry  v.  Miller.  (Seld. 
Notes  of  Cases.  No.  3.  p.  12). 

DALY,  J. — There  was  no  error  in  the  referee's  allowing  addi- 
tional evidence  to  be  given  after  the  case  was  summed  up 


NEW-YORK.  147 


l)uguid  a.  Ogilvie. 


and  submitted  to  him.  It  appears  to  have  been  done  upon  his 
own  motion,  and  was  confined  to  a  particular  point.  The 
plaintiff,  long  after  he  had  performed  the  services  for  which 
he  sought  to  recover,  gave  the  defendant  his  promissory  note 
of  $75,  and  paid  it  when  it  fell  due.  This  appearing  in  evi- 
dence, unaccompanied  by  any  explanation,  warranted  the  pre- 
sumption that  nothing  was  due  to  the  plaintiff  when  he  paid 
the  amount  of  this  note  to  the  defendant.  (De  Freest  v. 
Bloomingdale,  5  Den.,  304).  It  was  in  the  discretion  of  the 
referee  to  allow  the  plaintiff,  even  after  the  cause  was  sub- 
mitted, to  remove  this  presumption  by  showing  the  circum- 
stances under  which  this  note  was  given  and  paid.  It  was 
held  in  Cleaveland  v.  Hunter,  (1  Wend.,  104),  that  after  a 
cause  was  submitted,  and  the  referees  had  retired,  they  might 
open  the  case  to  hear  further  testimony.  In  the  present  case 
the  parties  were  fully  notified  as  to  what  extent  further  testi- 
mony was  to  be  allowed.  The  additional  testimony  consisted 
in  the  examination  of  the  defendant  himself  alone.  It  has 
satisfactorily  explained  why  the  note  was  given  and  paid; 
and  having  thereby  tended  to  promote  the  ends  of  justice,  it 
would  evince  on  the  part  of  the  court  a  disregard  of  the  chief 
end  and  aim  of  any  legal  investigation  to  set  the  referee's 
report  aside  upon  that  ground. 

The  evidence  of  the  defendant'  showed  that  this  note  was 
given  for  money  borrowed  of  the  defendant  by  the  plaintiff 
upon  a  pressing  emergency,  for  twenty-five  days,  and  for 
which  he  offered  to  pay  additional  interest.  The  defendant 
having  been  placed  on  the  stand  as  a  witness  by  his  adversary, 
it  was  competent  for  him,  if  such  was  the  fact,  to  prove  that 
the  claim  for  services  had  been  adjusted  and  paid,  or  give  in 
evidence  any  act  of  the  plaintiff,  or  any  conversation  between 
himself  and  the  plaintiff,  from  which  it  might  be  inferred  that 
the  payments  made  to  the  plaintiff,  were  received  by  him  in  full 
satisfaction  of  his  claim.  Not  having  done  so,  it  may  fairly  be 
presumed  that  the  claim  for  services  remained  unadjusted,  and 
that  the  giving,  and  the  payment  of  the  note,  was  a  separate  and 
distinct  transaction,  upon  which  no  presumption  could  be 
founded  as  to  the  real  state  of  indebtedness  between  the  parties. 

The  evidence  in  respect  to  the  value  of  the  services,  was 


148  ABBOTTS'  PRACTICE  REPORTS. 

Jacks  a.  Darrin. 

conflicting,  and  in  such  cases  we  never  interfere,  though  I 
confess  I  am  unable  to  decide  upon  what  basis  the  referee 
fixed  the  value  of  the  services,  as  he  appears  to  have  done  at 
$210.  Some  of  the  witnesses  estimated  the  value  of  the  ser- 
vices at  a  higher  sum,  others  at  a  lower,  and  we  cannot  say 
that  he  erred  in  abating  something  from  the  estimates  of  the 
former  in  deference  to  the  opinions  of  the  latter,  or  in  adding 
something  to  the  estimates  of  the  latter  in  deference  to  the 
opinions  of  the  former. 
Judgment  affirmed. 


JACKS  a.  DARRIN. 

New  York  Common  Pleas  /  General  Term,  December,  1854.. 
LOST  CHECK. — RECOVERY  MAY  BE  HAD  ON  INDEMNITY. 

A  check  is  a  bill  of  exchange,  within  the  statute,  authorizing  a  recovery  upon  a  lost 
bill  of  exchange  when  the  bond  of  indemnity  required  by  the  statute  is  tendered 
to  the  defendant  upon  the  trial  and  parol  proof  thereof  of  the  contents  of  the 
instrument  given. 

The  dictum  in  2  Cowen's  Treatise,  184,  3d  ed.,  that  if  a  bill  of  exchange  is  lost  after 
action  brought,  no  recovery  can  be  had  upon  it,  shown  to  be  erroneous. 

Appeal  from  a  judgment  of  the  Marine  Court. 

This  action  was  brought  against  the  defendant,  as  maker  of 
a  check.  At  the  joining  of  issue  the  check  was  produced,  but 
it  was  lost  before  the  cause  was  brought  on  for  trial.  On  the 
trial,  before  Phillips,  J.,  January  31,  1854,  the  check  appear- 
ing to  be  lost,  the  plaintiff  offered  a  bond  of  indemnity,  pur- 
suant to  statute.  Objection  being  made,  the  justice  refused 
the  bond. 

The  plaintiff  then  requested  leave  to  put  in  a  supplemental 
or  amended  complaint,  and  to  be  allowed  to  prove  the  con- 
tents of  the  lost  instrument  by  parol.  Also  refused,  and 
complaint  dismissed.  Plaintiff  appealed. 

W.  R.  Stratford,  for  appellant. 

Van  Antwerp  and  James,  for  respondent. 


NEW-YOKK.  149 


Jacks  a.  Darrin. 


DALY,  J. — A  check,  is  a  bill  of  exchange,  within  the  mean- 
ing of  the  statute,  authorizing  a  recovery  upon  a  negotiable 
bill  of  exchange  which  has  been  lost,  upon  giving  parol  evi- 
dence of  its  contents,  and  tendering  to  the  defendant  at  the 
trial  the  bond  of  indemnity  provided  for  by  the  statute. 
(Boehm  v.  Sterling,  7  Johns.  12.,  419.  426 ;  Cruger  v.  Arm- 
strong, 3  Johns.  Cos.,  5.  7,  8 ;  Merchants'  Bank  v.  Spicer,  6 
Wend.,  443 ;  Murray  v.  Judah,  6  Cow.,  484 ;  Harker  v.  Ander- 
son, 21  Wend.,  172). 

No  amendment  of  the  complaint  in  the  case  was  necessary. 
The  plaintiff  was  entitled  to  recover  upon  tendering  the  bond 
of  indemnity,  and  proving  by  parol,  the  contents  of  the  instru- 
ment. He  proposed  that  the  case  should  proceed,  and  that  if 
it  was  found  that  he  was  entitled  to  recover,  that  he  should  file 
the  necessary  bond.  This  might  be  allowed  when  it  appeared 
that  the  plaintiff  had  not  discovered  the  loss  of  the  check  until 
the  calling  of  the  cause,  though  in  fact  I  see  no  objection  to 
allowing  him  to  file  the  bond  at  any  time  before  the  cause  is 
submitted  for  decision,  except  the  loss  of  the  time  of  the  court 
if  he  should  not  then  be  prepared  to  tender  it.  The  justice, 
however,  appears  to  have  held,  that  as  the  check  was  lost 
between  the  day  of  the  commencement  of  the  action  and  the 
day  of  trial,  the  statute  did  not  apply  to  such  a  case.  This 
was  clearly  erroneous.  The  dictum  in  2  Cowerfs  Treatise, 
184,  2d  ed.,  is  founded  upon  Poole  v.  Smith,  a  nisiprius  case, 
in  Holt  Nt  P.,  144 ;  but  that  case  was  simply  in  affirmance 
of  the  English  doctrine,  that  an  action  could  not  be  main- 
tained in  a  court  of  law  upon  a  lost  negotiable  instrument,  the 
remedy  being  in  equity  where  a  bond  of  indemnity  might  be 
required  for  the  defendant's  security,  there  being  no  means  by 
which  courts  of  law  could  provide  for  this  security ;  a  doctrine 
affirmed  by  this  State,  in  Rowley  v.  Ball,  3  Cow.,  303,  and 
which  led  to  the  enactment  of  the  statute  in  question.  The 
ruling  in  the  case  in  Holt,  was  not  upon  the  special  ground 
that  the  action  could  not  be  maintained  because  the  note  had 
been  lost  after  suit  brought,  but  that  fact  was  relied  on  by  the 
plaintiff  as  excepting  it  from  the  general  rule,  as  the  plaintiff 
had  a  right  of  action  when  the  action  was  brought,  it  being  in 
proof  that  the  check  had  been  shown  to  the  defendant  after 


150  ABBOTTS'  PKACTICE  REPORTS. 

Fairbanks  a.  Corlies. 

the  commencement  of  the  suit  and  he  had  admitted  it  to  be- 
his,  with  the  additional  fact  that  the  check  at  the  time  of  trial 
was  barred  by  the  statute  of  limitations,  and  could  not  be 
recovered  against  the  defendant  by  any  third  party  who 
might  get  possession  of  it ;  nor  is  any  such  distinction  to  be 
found  in  the  statute,  tinder  the  ruling  of  the  court  below, 
therefore,  it  would  not  have  availed  if  the  plaintiff  had  been 
ready  with  and  tendered  a  bond,  and  I  think,  therefore,  that 
the  judgment  should  be  reversed. 


FAIRBANKS  a.  CORLIES. 
New  York  Common  Pleas ;  General  Term,  December,  1854. 

TRIAL  IN  DISTRICT  COURT. — JURISDICTION  OF  JUSTICE. — NON- 
RESIDENCE  OF  PARTIES. 

The  refusal  of  the  justice  of  a  district  court  to  suspend  a  trial  after  witnesses  have 
been  examined,  for  the  purpose  of  enabling  one  of  plaintiff's  witnesses  to  leave 
the  court  to  search  for  papers  mentioned  in  a  subpoena  duces  tecum,  served  on 
such  witness  by  the  plaintiff  shortly  before  the  witness  was  sworn,  is  no  ground 
for  reversing  the  judgment. 

Where  the  evidence  is  conflicting,  the  finding  of  the  justice  will  be  deemed  conclu- 
sive upon  the  facts. 

Where  a  plaintiff  voluntarily  brings  his  suit  before  the  justice  of  a  district  in  which 
neither  the  plaintiff  nor  defendant  resides,  and  goes  to  trial  upon  the  merits,  and 
recovers  a  judgment  against  the  defendant, 'though  for  less  than  the  plaintiffs 
demand,  (it  in  no  wise  appearing  on  the  trial  that  the  parties  do  not  reside  within 
such  district,)  the  plaintiff  cannot  by  appeal  from  such  judgment  require  the 
appellate  court,  to  reverse  the  judgment  upon  the  ground  that  the  justice  had  no 
jurisdiction  by  reason  of  such  non-residence. 

It  seems  that  a  judgment  so  procured  is  not  as  to  the  plaintiff,  procured  contrary  to 
the  meaning  and  intent  of  the  statute  requiring  suits  in  the  justices'  courts  to  be 
brought  in  the  district  where  one  of  the  parties  resides ;  and  if  otherwise  the 
plaintiff  is  so  far  precluded  by  his  own  voluntary  acts  that  he  cannot  have  a 
reversal  on  appeal. 

Appeal  from  the  judgment  of  a  district  court. 

The  suit  was  brought  to  recover  for  services  rendered  and 
disbursements  made  in  an  examination  of  title.  One  Judah, 
having  been  examined  by  defence  to  show  the  insufficiency 


NEW-YORK.  151 


Fairbanks  a.  Corlies. 


of  the  examination  made  by  plaintiff,  stated  upon  his  cross- 
examination,  that  a  subpoena  duces  tecum,  requiring  him  to 
produce  the  abstract  of  title  prepared  by  the  plaintiff,  was 
served  upon  him  after  he  entered  court,  and  wfrile  he  took  the- 
stand  as  a  witness, — but  that  he  could  not  produce  the  abstract 
for  want  of  notice  previous  to  the*  moment  of  giving  his 
testimony. 

The  plaintiff  requested  'the  justice  to  suspend  the  trial  to 
enable  the  witness  to  procure  the  paper.  Thi^  the  justice 
refused  to  do. 

Evidence  on  both  sides  having  been  put  in,  the  justice  ren- 
dered judgment  for  the  plaintiff  for  the  amount  of  his  dis- 
bursements only.  The  plaintiff  appealed  upon  several 
grounds,  among  others,  alleging  that  the  justice  had  no  juris- 
diction ;  and  upon  the  appeal,  showed  by  affidavit  annexed  to 
his  points  upon  appeal,  that  neither  party  resided  in  either  of 
the  wards  within  the  jurisdiction  of  the  justice. 

Plaintiff  in  person.  An  assistant  justice  elected  under  the 
act  of  1848,  (Laws  of  18&8,  ch.  153),  has  no  jurisdiction  where 
the  defendant  and  one  of  the  plaintiffs  reside  in  the  city,  and 
neither  of  tb.e  parties  reside  in  a  ward  within  the  justice's  dis- 
trict. (Cornell  a.  Smith,  2  Sand.  S.  C.  R.,  290).  Appearing 
and  pleading  without  objection,  do  not  waive  the  defect  nor 
confer  jurisdiction,  the  statute  being  peremptory  that  the  jus- 
tice shall  dismiss  the  causes.  (Ibid.) 

J.  E.  Develin,  for  respondent.  It  does  not  appear  by  the 
return,  where  the  parties  resided.  Whether  or  not  the  justice 
had  jurisdiction  is  a  question  of  law.  An  affidavit  can  only 
be  used  to  show  facts  not  in  the  return,  can  only  be  used 
when  "  the  appeal  is  founded  on  an  error  in  fact  in  the  pro- 
ceedings not  affecting  the  merits  of  the  action,  and  not  within 
the  knowledge  of  the  justice."  (Code,  §  366).  The  point, 
raised  on  the  affidavit  of  appellant  is  a  point  of  law,  not  of 
fact,  and  therefore  not  within  this  section. 

Even  if  the  court  will  permit  an  affidavit  to  be  used  in  its 
discretion,  favor  should  not  be  shown  to  the  appellant  in  a 
case  like  the  present. 


152  ABBOTTS'  PRACTICE  REPORTS. 

Fairbanks  a.  Corlies. 

WOODRUFF,  J. — The  various  grounds  of  appeal  which  relate 
to  the  admission  or  rejection  of  evidence  do  not  appear  by 
the  return  to  have  any  foundation  in  the  proceedings  had  on 
the  trial.  If  any  objectionable  testimony  was  received,  it  was 
received  without  objection,  and  it  is  too  late  to  make  such 
objection  for  the  first  time  on  appeal.  If  the  return  is  imper- 
fect in  this  respect,  the  appellant  should  have  caused  it  to  be 
corrected  and  the  omissions  supplied. 

As  to  *iie  evidence  said  to  have  been  rejected,  I  find 
nothing  in  the  return  showing  any  such  rejection. 

As  to  the  claim  of  the  appellant  that  the  justice  should 
have  suspended  the  trial  to  enable  the  plaintiff  to  compel  one 
of  his  witnesses  to  obey  a  subpoena  duaes  tecum,  which  was 
served  after  the  trial  commenced,  it  is  at  least  doubtful 
whether  the  justice  had  any  authority  after  the  examination 
of  witnesses  had  commenced,  to  suspend  the  trial  without  the 
consent  of  both  parties,  except  for  the  simple  cause  that  there 
was  not  time  to  conclude  it  on  the  day. 

But  if  he  had  authority,  it  was  a  matter  of  discretion  with 
which  we  could  not  interfere,  unless  possibly  in  a  case  of 
gross  injustice — and  finally  it  was  owing  to  the  plaintiff's 
laches  that  his  subposna  was  not  sooner  served,  and  the  justice 
was  quite  right  in  refusing  the  application.* 

Upon  the  merits  there  is  no  sufficient  reason  for  a  renewal. 
The  appellant  insists  that  the  finding  of  the  justice  is  against 
the  weight  of  the  evidence.  The  claim  of  the  plaintiff  was 
for  an  amount  due  him  for  searching  the  title  to  certain  real 
estate.  The  evidence  was  conflicting  in  regard  to  the  defend- 
ant's agreement.  Being  examined  by  the  plaintiff  on  his  own 
behalf,  the  defendant  testified  in  substance  that  she  employed 
the  plaintiff  to  search  the  title,  and  procure  a  loan  for  her, 
upon  his  agreeing  that  he  would  do  so  for  $25,  and  disburse- 
ments not  exceeding  $5 ;  and  that  so  far  from  performing 
this  agreement  on  his  part,  he  only  placed  her  in  communica- 


*  In  Pollock  a.  Ehle,  decided  at  the  Common  Pleas,  Dec.  Gen.  Term,  1854,  it  was 
held  that  a  justice  ought  not  to  adjourn  a  cause  after  the  plaintiff  rests,  to  allow 
defendant  to  procure  evidence  which  he  might  have  obtained  prior  to  the  com- 
mencement of  the  trial. 


NEW-YORK.  153 


Fairbanks  a.  Corlies. 


tion  with  another  party  to  whom  she  was  required  in  order  to 
procure  the  money,  to  pay  $89  for  searching  the  title  and  for 
the  disbursements  connected  therewith,  besides  a  further  pay- 
ment of  commissions  to  a  broker  through  whom  the  loan  was 
procured. 

Although  her  payment  of  a  large  amount  was  not  in  itself 
alone  a  reason  for  not  performing  her  agreement  with  the  plain- 
tiff, if  he  on  on  his  part  performed  his  agreement,  yet  the  evi- 
dence in  this  respect  warranted  a  finding  that  the  plaintiff  did 
not  perform  what  he  undertook  to  do.  It  appeared,  however, 
that  the  defendant  did  afterwards  consent  to  pay  $65  in  addition 
to  the  $25  first  stipulated,  but  it  also  appeared  that  this  was 
not  sufficient  to  effect  the  object.  On  the  contrary,  before 
she  could  obtain  the  money  she  was  required  to  pay,  and  did 
pay,  over  $100.  The  evidence  I  think  warranted  the  justice 
in  holding  that  the  plaintiff  in  the  first  instance  undertook  that 
she  should  have  the  money  at  an  expense  of  not  exceeding 
$30 ;  and  that  the  subsequent  modification  did  not  vary  the 
agreement  further  than  to  extend  the  amount  to  $90 ;  and 
even  this  modification,  the  defendant  testified,  was  wrung  from 
her  by  duress  of  her  papers. 

In  this  view  we  cannot  .say  that  a  finding  that  the  plaintiff 
did  not  perform  his  contract  was  against  evidence, — indeed  it 
is  left  in  doubt  by  the  evidence  whether  in  fact  the  plaintiff 
ever  did  make  any  search  of  the  title.  He  certainly  did  not 
make  one  which  was  effectual  for  the  purpose  contemplated 
by  both  of  the  parties.  By  allowing  to  him  the  sums  paid  out 
for  the  certificates  procured  and  furnished  by  him,  the  justice 
has  done  all  that  consistently  with  his  finding  in  other  respects 
he  could  do. 

As  to  the  plaintiff's  claim  for  drawing  papers,  it  must  suffice 
to  say,  that  the  plaintiff  did  not  declare  for  any  such  services. 

The  remaining  inquiry  is,  whether  the  plaintiff  can  require 
a  reversal  of  the  judgment  rendered  in  his  own  favor,  (though 
for  a  sum  less  than  that  to  which  he  conceives  himself  enti- 
tled,) upon  the  ground  that  the  plaintiff  and  defendant  both 
resided  without  the  judicial  district,  and  that  the  justice  had 
therefore  no  jurisdiction. 

It  is  provided  by  section  103  of  the  act  relating  (among 


154  ABBOTTS'  PRACTICE  REPORTS. 

Fairbanks  a.  Corlies. 

other  subjects),  to  these  courts,  (2  Rev.  Laws,  1813),  that 
every  action  to  be  commenced  before  any  of  the  assistant  jus- 
tices, shall  be  commenced  either  in  the  ward  in  which  the 
plaintiff  has  resided  for  at  least  one  month,  or  in  the  ward  in 
which  the  defendant  resides ;  and  every  such  justice  is  directed 
and  required  to  dismiss  every  action  brought  before  him  con- 
trary to  the  provisions  of  this  section,  with  costs  of  suit,  to  be 
paid  by  the  plaintiff,  in  the  same  manner  as  if  he  were  non- 
suited on  the  merits  ;  and  every  judgment  that  may  be 
obtained  or  procured,  contrary  to  the  true  intent  and  meaning 
of  this  section,  shall  be  utterly  void. 

Under  this  provision  of  the  act,  the  present  case  presents 
this  question : 

Can  a  plaintiff,  who  has  voluntarily  selected  his  tribunal 
and  submitted  his  cause  to  adjudication,  and  obtained  a  judg- 
ment in  his  own  favor,  appeal  therefrom  and  require  a  reversal 
on  the  ground  that  his  suit  was  brought  by  himself  out  of  the 
ward  and  district  in  which  the  parties  resided  ? 

First.  Nothing  appeared  on  the  trial  or  in  any  of  the  pro- 
ceedings before  the  justice,  showing  that  the  parties  did  not 
reside  within  his  district ;  and  as  both  appeared  and  went  to 
trial  upon  the  merits  without  objection,  it  was  not  the  duty  of 
the  justice  to  volunteer  any  inquiry  into  the  residence  of  the 
parties. 

Second.  It  is  provided  by  section  89  of  the  same  act,  "  that 
where  any  parties  shall  agree  to  enter  an  action  before  any 
assistant  justice  without  process,  such  assistant  justice  shall 
proceed  to  trial  in  the  same  manner  as  if  a  summons  or  war- 
rant had  issued."  It  would  be  doing  no  great  violence  to  the 
statute,  if  we  should  hold  that  a  plaintiff,  by  voluntarily  pro- 
ceeding before  the  justice,  did,  in  legal  effect,  submit  by  his 
own  voluntary  agreement  to  the  jurisdiction,  so  that  as  to  such 
plaintiff  the  judgment  was  not  obtained  "  contrary  to  the  true 
intent  and  meaning  of  the  section  above  referred  to." 

Third.  The  section  referred  to,  manifestly  contemplates  a 
compulsory  proceeding,  and  was  inserted  for  the  protection  of 
the  party  proceeded  against,  and  it  is  not  unreasonable  to  say, 
that  so  far  as  the  plaintiff  is  affected  by  the  judgment  procured 
by  himself,  it  is  not  according  to  "  the  true  intent  and  mean- 


NEW-YORK.  155 

Fairbanks  a.  Corlies. 

ing  of  the  section,"  that  he  should,  after  judgment,  allege  his 
own  wrong  in  avoidance  thereof. 

Fourth.  It  may  be  plausibly  urged,  that  upon  a  reading  of 
the  whole  section  together,  the  legislature  only  intended  that 
when  it  appeared  on  the  trial  that  the  action  was  brought  in  a 
district  in  which  neither  party  resided,  it  should  be  the  duty 
of  the  justice  to  dismiss  the  action,  and  that  if  he  did  not  do 
so,  the  judgment  he  pronounced  should  be  void.  The  legis- 
lature did  certainly  intend,  (as  they  have  distinctly  expressed), 
that  when  the  action  failed  for  this  cause,  that  it  should  be 
with  costs  of  suit  to  be  paid  by  the  plaintiff,  and  not  that 
judgment  being  pronounced  in  his  favor,  he  should  avoid  it 
and  leave  the  defendant  to  pay  costs  incurred  in  the  defence. 
Nor  in  my  judgment  did  they  intend,  that  after  judgment  in 
the  plaintiff's  favor,  he  might  collect  the  amount,  and  then 
treat  the  judgment  as  void.  Where  no  such  defect  of  juris- 
diction appears  on  the  trial,  it  is  by  no  means  clear  that  the 
plaintiff  should  be  permitted  to  set  up  matter  not  appearing 
on  the  record,  and  arising  wholly  of  his  own  wrong,  and  allege 
it  as  an  error.  A  plaintiff  would  not  be  permitted  to  assign 
for  error  in  a  judgment  in  his  own  favor,  that  the  defendant 
was  an  infant,  appearing  by  attorney  instead  of  guardian.  la 
such  case,  it  is  true  the  parallel  is  not  exact,  but  the  analogy 
is  not  remote. 

Fifth.  I  apprehend  the  general  rule  cannot  be  controverted 
that  it  is  -only  the  party  who  is  aggrieved  by  the  judgment  who 
can  reverse  it.  The  former  statute  relating  to  certiorari  to 
justice's  courts,  authorized  either  party  thinMl^g  himself 
aggrieved  to  bring  the  writ,  but  it  did  not  follow  therefrom 
that  the  appellate  court  must  reverse  if  they  found  that  he  had 
sustained  no  wrong.  And  so  it  was  held  in  Hughes  v.  Stick- 
ney  (23  Wend.,  280).  This  judgment  being  in  favor  of  the 
appellant,  and  the  proceedings  being  in  other  respects  correct, 
the  plaintiff  is  not  aggrieved  by  it.  The  error,  if  any,  in  respect 
to  jurisdiction  aggrieves  the  defendant,  if  any  one.  He  might 
reverse  it  if  void.  (Striker  v.  Mott,  6  Wend.,  465).  By  the 
Code  the  mode  in  which  such  judgments  may  be  reviewed  is 
altered,  but  the  principles  by  which  such  review  shall  be 
governed  in  this  respect  are  not  changed  thereby. 


156  ABBOTTS'  PKACTICE  REPORTS. 

Fairbanks  a.  Corlies. 

It  is  stated  by  the  counsel  for.  the  respondent  in  his  argu- 
ment, that  the  judgment  has  been  paid.  This  fact,  if  relied 
upon,  should  have  been  laid  before  the  court  in  some  authen- 
tic form.  Had  this  been  done,  it  would  have  presented  a 
serious  question,  whether  the  limitations  upon  the  prosecution 
of  writs  of  error  in  favor  of  the  party  recovering  the  judgment 
should  furnish  a  principle  for  our  guidance,  (2  Rev.  Stat., 
592,  §  3),  and  whether  section  369  of  the  Code  contemplates 
restitution  in  such  a  case. 

Sixth.  It  would  be  no  hardship  to  the  plaintiff,  nor  any  vio- 
lence to  the  law,  to  hold  that  when  the  plaintiff  has  thus  volun- 
tarily submitted  himself  to  the  jurisdiction  of  the  justice  and 
had  a  trial  upon  the  merits,  he  is  precluded  from  proving  non- 
residence  as  a  ground  of  reversal,  and  that  his  acts  should  be 
taken  as  a  conclusive  admission  by  him  that  the  residence  of 
the  parties  was  such  as  in  this  respect  to  entitle  the  justice  to 
proceed  to  judgment. 

Upon  the  various  points  in  relation  to  this  question  whether 
the  plaintiff  is  bound  by  the  judgment,  I  have  not  intended  to 
express  an  opinion.  It  is  not  necessary  that  I  should  do  so. 
Nor  do  I  intend  to  dissent  at  this  time  from  the  decision  of  the 
Superior  Court  in  Cornell  v.  Smith  (2  Sand.,  290).  It  may  be 
that  a  defendant,  though  he  appears,  pleads,  and  goes  to  trial 
without  objection,  may  yet  seek  a  reversal,  alleging  that  he  is 
aggrieved  by  a  judgment  against  him. 

But  I  do  intend  to  say,  for  many  of  the  reasons  above  sug- 
gested, that  we  are  not  called  upon  to  reverse  this  judgment, 
and  it  is  to**ny  mind  sufficient  that  no  error  was  committed  on 
the  trial  by  which  the  plaintiff  has  been  aggrieved,  and  ren- 
dering the  judgment  in  his  favor  was  no  grievance  to  him.  If 
the  judgment  is  utterly  void,  as  he  claims  it  to  be,  and  his 
acts  do  not  preclude  him  from  alleging  and  proving  the  mat- 
ters which  invalidate  it,  he  is  in  no  wise  prejudiced  by  it.  It 
does  not  even  stand  in  the  way  of  another  suit  for  the  same 
cause  of  action. 

And  if  the  judgment  is  not  void  as  to  him,  then  it  ought 
not  to  be  reversed,  but  he  ought  on  every  ground  to  be  held 
bound  thereby. 

And  let  it  be  observed  that  it  does  not  follow  from  our 


NEW-YORK.  15T 


Fairbanks  a.  Corlies. 


refusal  to  reverse,  that  the  judgment  is  not  void.  In  relation 
to  such  a  judgment,  the  prevailing  party  therein  stands  in  a 
very  different  situation  from  him  against  whom  it  is  rendered. 
He  is  entitled  to  a  reversal  because  such  a  judgment  may  be 
enforced  against  his  property,  and  the  officer  levying  an  execu- 
tion thereon  would  be  protected.  Nothing  on  the  face  of  the 
process  or  even  in  the  judgment  itself  would  indicate  that  it  is 
not  in  all  respects  valid,  and  upon  this  ground  it  was  that  the 
court  in  Striker  v.  Mott  above  cited  ordered  a  reversal.  But 
the  prevailing  party,  if  the  judgment  is  void,  loses  nothing  and 
can  lose  nothing  by  it ;  and  nothing  has  occurred  or  can  occur 
to  his  prejudice  by  reason  thereof.  In  a  case  above  referred 
to,  Nelson,  J.,  says,  (when  he  deemed  the  judgment  erroneous 
upon  other  grounds),  "the  judgment  was  clearly  erroneous, 
and  the  plaintiff  (defendant  in  certiorari)  could  have  reversed 
it,  as  he  was  aggrieved,  but  I  am  not  aware  of  any  rule  or 
practice  that  will  permit  the  defendant  (plaintiff  in  certiorari) 
to  right  him.  I  think  he  should  continue  to  suffer  unless  he 
choses  to  move  himself  in  the  matter."  So  here  I  think  it  is 
the  defendant  who  alone  can  be  said  to  be  aggrieved  if  any 
one,  and  it  is  right  that  she  should  suffer  if  she  do  not  complain 
of  the  wrong.  The  plaintiff  has  no  occasion  to  ask  of  us  that 
the  defendant  be  relieved. 

It  would  be  hard  indeed  upon  the  defendant,  if  the  plaintiff 
could  be  permitted  to  bring  his  suit,  choosing  his  jurisdiction, 
going  to  trial  and  recovering  a  judgment,  and  then  come  here 
by  appeal  and  have  a  reversal  with  costs,  and  thus  leave  the 
defendant,  who  is  in  no  wrong  in  respect  to  this  question,  not 
only  to  pay  her  own  costs,  but  also  to  pay  costs  in  this  court. 

In  my  opinion  the  judgment  should  be  affirmed. 


158  ABBOTTS'  PRACTICE  REPORTS. 

Hull  a.  Carnley. 


HULL  °"  CARNLEY- 
Court  of  Appeals  /  December  Term^  1854. 

EXECUTION.  —  SALE  OF  MORTGAGED  CHATTELS. 

Notwithstanding  that  chattels  are  mortgaged,  they  may  be  seized  upon  execution 
against  the  mortgagor,  where  he  is  in  possession,  and  at  the  time  of  the  seizure 
is  entitled  to  the  possession  for  a  definite  period,  against  the  mortgagee. 

The  sheriff  is  not  liable  to  the  mortgagee  for  having  assumed  to  sell  the  whole 
interest  in  goods  so  mortgaged,  ignoring  the  lien  of  the  mortgage  upon  them. 

Such  a  sale  passes  only  the  interest  of  the  mortgagor,  and  the  mortgagee  is  not 
legally  prejudiced  by  it. 

Appeal  from  a  judgment  of  the  Superior  Court  upon  the 
merits. 

This  was  an  action  brought  against  Carnley,  sheriff  of  the 
eity  and  county  of  New  York,  and  Colton,  creditor  in  an  exe- 
cution which  the  sheriff  had  levied  on  chattels,  in  which  the 
plaintiff  claimed  an  interest  as  mortgagee,  and  which  had  been 
satisfied  by  a  sale  of  the  mortgaged  chattels. 

The  action  was  tried  before  Ch.  Justice  Oakley,  a  jury  trial 
being  waived.  His  honor  found  the  following  facts  to  be 
true. 

Francis  Michelin,  a  lithographer  by  trade,  was  the  execution 
debtor.  By  a  chattel  mortgage,  which  was,  on  the  15th  day 
of  August,  1850,  filed  in  the  clerk's  office  of  Kings  county, 
where  Michelin  then  resided,  he  mortgaged  his  presses  and 
lithographic  stones  to  Hull,  the  plaintiff,  to  secure  payment  of 
a  debt  which  became  due  the  14th  day  of  February,  1851. 
This  mortgage  was  made  in  good  faith  and  without  intent  to 
defraud.  The  property  was  left  with  Michelin,  to  be  used  in 
his  business. 

On  the  28th  of  September,  1850,  after  the  making  and  filing 
of  the  mortgage,  but  before  default  in  the  payment  of  the 
debt  secured  by  it,  —  the  defendant  Colton  obtained  judgment 
against  Michelin,  and  issued  execution  to  the  defendant  Carn- 
ley, who  levied  it  upon  the  mortgaged  property.  Hull  pro- 


NEW-YORK.  159 


Hull  a.  Carnley. 


•cured  written  notice  of  his  mortgage  to  be  served  upon  the 
sheriff;  but  the  latter,  notwithstanding,  being  indemnified  by 
Colton,  sold  outright  the  whole  of  the  property,  and  the  entire 
interest  therein,  and  satisfied  the  execution. 

When  the  debt  secured  by  the  mortgage  fell  due,  Michelin 
failed  to  pay  it.  The  plaintiff  then  demanded  the  mortgaged 
goods  or  the  proceeds  of  their  sale  from  the  sheriff,  and  com- 
pliance with  this  demand  being  refused,  brought  this  suit. 

His  honor  decided  upon  these  facts,  that  sheriff  Carnley 
could  not  lawfully  seize  and  sell  the  entire  interest  in  the 
mortgaged  property, — that  the  defendants  were  wrong  doers, 
and  that  the  plaintiff  was  entitled  to  recover  the  amount 
of  his  mortgaged  debt.  Judgment  was  accordingly  rendered 
for  plaintiff. 

The  defendants  appealed  to  the  general  term,  where  the 
judgment  was  affirmed.  (See  2  Duer,  99.) 

The  defendants  then  appealed  to  the  Court  of  Appeals. 
The  question  raised  upon  the  appeal  was,  whether  the  con- 
clusions of  law  were  correctly  drawn. 

E.  W.  Chester,  for  appellants,  submitted  the  case  upon  a 
written  argument. 

D.  D.  Field,  for  respondents.  A  mortgagee  of  chattels, 
although  not  in  possession  nor  entitled  to  immediate  posses- 
sion, has  a  right  of  action  against  a  sheriff  who  seizes  the 
entire  property,  and  sells  it,  regardless  of  his  rights.  If  it 
were  not  so,  he  would  in  many  cases  be  remediless.  The 
property  might  be  dispersed  or  placed  beyond  his  reach. 

The  mortgage  transfers  the  property  to  the  mortgagee;  the 
stipulation  that  the  mortgagor  may  retain  the  possession  till 
default,  only  renders  him  a  bailee  for  the  time  being.  His 
interest  does  not  extend  to  the  absolute  control  and  disposition 
of  the  property.  He  cannot  sell  the  entire  property  to  ano- 
ther, and  the  sheriff  cannot  sell  more  than  the  morto-ao-or 

i  O     D 

could  have  done. 

DENIO,  J. — I  consider  it  well  settled  that  chattels  which  have 
been  mortgaged  may  notwithstanding  be  seized  upon  execution 


160  ABBOTTS'  PRACTICE  REPORTS. 

Hull  a.  Carnley. 

against  the  mortgagor  when  he  is  in  possession,  and  at  the  time 
of  the  seizure  is  entitled  to  the  possession  for  a  definite  period 
against  the  mortgagee.  This  was  assumed  to  be  the  law  in 
Mattison  v.  Banars  in  this  court,  (1  Comst.,  95),  and  the  prin- 
ciple has  been  repeatedly  recognized  by  the  former  and  the 
present  Supreme  Court  and  the  late  court  for  the  Correction  of 
Errors,  and  has  never,  so  far  as  I  know,  been  denied  by  any 
court  in  this  State.  (Otis  v.  "Wood,  8  Wend.,  498,  500,  per 
Sewage,  C.  J.,  citing  McCracken  v.  Luce,  unreported ;  Smith 
v.  Downing,  7  ibid,  135 ;  Bailey  v.  Burton,  8  Hid,  339,  348  ; 
Wheeler  v.  McFarland,  10  ibid,  318  ;  Randall  v.  Cook,  IT  ibid, 
53  ;  Bank  of  Lansingburgh  v.  Crane,  1  Barb.,  S.  O.  R.,  542). 
The  defendants  did  not  therefore  do  an  illegal  act  in  seizing 
the  property  on  the  execution  against  Michelin  the  mortgagor. 

But  with  a  knowledge  of  the  plaintiff's  mortgage,  the 
defendant  Carnley,  as  sheriff,  by  the  procurement  of  the  other 
defendant,  sold  the  property  generally  without  any  recognition 
of  the  plaintiff's  lien,  and  did  not  in  terms,  as  it  is  argued  he 
ought  to  have  done,  limit  the  sale  to  the  interest  of  the  judg- 
ment debtor.  At  the  time  of  the  sale,  as  well  as  when  the 
seizure  was  made,  Michelin  was  entitled  to  the  possession,  no 
default  in  paying  the  mortgage  having  occurred,  and  the  time 
of  making  the  first  payment  not  arriving  until  more  than  three 
months  afterwards  ;  and  the  mortgage  moreover  contained  an 
express  stipulation  that,  until  default,  the  mortgagor  should  be 
entitled  to  the  possession.  I  may  here  mention,  in  order  to 
present  all  the  material  facts  in  the  same  connection,  that  this 
action  was  not  commenced  until  after  a  default  in  payment 
had  taken  place,  and  that  before  bringing  the  suit  the  plaintiff 
demanded  the  articles  of  the  defendants.  They  could  not 
however  give  them  up,  for  they  were  in  the  hands  of  the  pur- 
chaser at  the  sale. 

Assuming  the  chattel  mortgage  to  have  been  a  valid  instru- 
ment, (and  I  see  no  reason  to  doubt  but  that  it  was  such),  the 
sheriff  had  a  right  to  sell  the  interest  of  the  mortgagor  and 
deliver  the  property  to  the  purchaser,  and  the  purchaser  was 
warranted  in  taking  it  into  his  possession,  and.  in  using  it  for 
the  purposes  to  which  it  was  adapted,  until  the  day  of  pay- 
ment ;  and  he  had  moreover  a  right  to  pay  the  mortgage  debt,. 


NEW-YOBK.  161 


Hull  a.  Camley. 


and  thus  extinguish  the  lien.  Now  whether  the  sheriff  assumed 
to  sell  the  whole  interest,  ignoring  the  existence  of  the  mort- 
gage, or  limited'  the  sale  to  the  mortgagor's  interest,  expressly- 
recognizing  the  mortgage  and  selling  subject  to  it,  the  right  of 
the  purchaser  and  of  the  mortgagee  would  in  either  case  be 
precisely  the  same.  The  mortgagee  would  not  be  deprived  of 
his  interest  by  a  sale  which  did  not  recognize  the  mortgage, 
nor  would  the  purchaser  under  such  a  sale  acquire  anything 
more  than  the  interest  which  was  bound  by  the  execution,  to 
wit,  the  right  of  the  mortgagor  to  the  premises  and, the  equity 
of  redemption ;  and  th,ese  would  be  the  respective  rights  of  the 
parties  if  the  sale  was  limited  in  terms  to  the  interest  which 
could  effectually  be  sold,  that  is,  the  title  of  the  mortgagor. 
The  effect  of  the  sale  on  execution  against  the  mortgagor  would 
be  the  same  as  voluntary  transfer  of  the  mortgaged  articles  by 
the  mortgagor  to  a  third  person.  Such  a  disposition  of  them 
would  not  oust  the  mortgagee,  whether  his  interest  was  repudi- 
ated or  was  recognized  ;  such  sales,  whether  judicial  or  pri- 
vate, pass  such  title  as  the  vendor,  or  party  against  whom  the 
authority  to  sell  exists,  had  to  part  with,  and  no  other.  The 
mortgagee,  it  is  true,  may  be  in  a  worse  position  in  some  re- 
spects by  the  property's  passing  into  other  hands,  for  he  must 
keep  sight  of  it  so  as  to  be  able  to  find  and  take  possession  of 
it  when  his  title  shall  become  absolute  by  a  default  in  pay- 
ment. But  he  is  not  legally  prejudiced,  for  the  mortgagor 
may,  when  not  restrained  by  the  terms  of  the  mortgage,  re- 
move it  from  place  to  place  at  his  pleasure.  He  has  the  same 
right  to  do  so  which  a  purchaser  on  execution  against  him  has. 
I  do  not  therefore  see  any  reason  why  such  a  sale  as  was  made 
in  this  case  should  be  considered  a  conversion  of  the  property, 
or  a  disturbance  of  the  mortgagee's  title.  That  title  was  not 
di-vested  or  interfered  with,  and  there  was  no  disposition  of  the 
corpus  of  the  property  which  was  not  authorized  by  law. 
When  the  mortgagee's  title  became  absolute  he  could  claim 
his  goods  in  the  hands  of  the  purchaser,  or  maintain  an  action 
if  they  should  be  withheld  from  him.  Upon  principle  I  am 
therefore  of  opinion  that  the  judgment  of  the  Superior  Court 
cannot  be  sustained. 

I  do  not  think  the  case  of  Wheeler  v.  McFarland  (10  Wend., 

v 


162  ABBOTTS'  PRACTICE  REPORTS. 

Hull  a.  Carnley. 

320),  which  is  relied  on  by  the  plaintiff's  counsel,  tends  to 
prove  his  position.  The  property  which  was  in  question  in 
that  case  was  pledged  for  the  payment  for  labor  which  had 
been  bestowed  upon  it  to  its  full  value ;  and  the  view  which 
the  court  took  of  the  case  was,  that  the  pledgee  was  in  pos- 
session, as  he  must  have  been  to  constitute  a  valid  pledge. 
The  execution  was  against  the  pledgor,  and  the  court  held  that 
the  sheriff,  who  had  seized  and  advertised  the  property,  was 
liable  in  replevin  to  the  pledge,  because  in  his  advertisement 
he  offered  the  whole  property,  and  did  not  propose  to  sell  sub- 
ject to  the  plaintiff's  lien,  but  in  defiance  of  it.  The  authority 
to  sell  the  pledger's  interest  is  given  by  statute,  (2  7?.  $.,  366, 
§21),  and  does  not  contemplate  that  the  purchaser  shall  take 
possession  by  virtue  of  the  sale  nntil  he  has  complied  with  the 
terms  and  conditions  of  the  pledge.  It  does  not  authorize 
any  thing  hostile  to  the  interest  or  possession  of  the  pledge. 
The  court  in  that  case  considered  the  levy  and  advertisement 
as  equivalent  to  divesting  the  plaintiff  of  his  possession  ;  and 
as  the  sheriff  had  no  right  to  do  that,  and  as  the  plaintiff'  could 
not  be  deprived  of  his  possession  unless  temporarily  for  the 
purpose  of  a  sale,  until  his  lien  was  extinguished,  it  was  held 
that  this  action  was  sustainable  against  the  sheriff.  The  prin- 
ciple adjudged  has  no  application  to  a  case  like  the  present, 
when  the  judgment  debtor  was  entitled  to  the  possession,  and 
the  party  seeking  to  recover  against  the  officer  had  no  right  to 
the  possession  at  the  time  of  the  sale.  The  case  itself  was  re- 
versed in  the  Court  of  Error  on  the  ground  that  the  plaintiff 
had  parted  with  the  possession  before  the  levy,  (26  Wend., 
467).  But  the  principle  of  law  which  was  decided  may  never- 
theless be  correct.  (See  Bakewell  v.  Ellsworth,  6  Hill,  484  ; 
Stief  v.  Hart,  1  Comst.,  20). 

The  cases  which  have  been  decided  respecting  the  sale  of  the 
goods  of  corporations  or  joint  owners  upon  executions  against 
one  partner  or  joint  owner  have  a  stronger  analogy  to  this 
case ;  but  I  think  they  do  not  govern  it.  (Phillip  v.  Cook,  24 
Wend.,  386 ;  Hodell  v.  Cook,  2  HiU,  47  and  note ;  Walsh  v. 
Adams,  3  Den.,  125).  All  the  partners  or  joint  owners  have 
an  equal  right  to  the  possession  with  the  one  against  whom  the 
execution  issues.  The  interruption  of  that  possession  is  an  in- 


NEW-YORK.  163 


Hull  a.  Carnley. 


jury  which  can  only  be  justified  by  the  process.  By  assuming 
to  sell  the  whole  interest  when  the  authority  extends  only  to 
one  aliquot  share,  and  delivering  possession  to  the  purchaser 
pursuant  to  such  sale,  the  other  owners  are  immediately 
divested  of  a  concurrent  right  of  possession.  The  authority  to 
disturb  the  possession  of  the  other  owners,  is  conferred  by  law, 
and  to  be  effectual  must  be  exercised  in  the  manner  which  the 
law  directs ;  and  doing  it  in  any  other  manner  is  an  abuse  of 
the  authority,  and  renders  the  officer  a  trespasser  from  the 
beginning.  This  is  the  ground  upon  which  the  doctrine  is 
placed  by  Judge  Cowen  in  Wadden  v.  Cook,  and  upon  this 
principle  only  can  the  decision  be  sustained.  In  the  case  under 
review  there  is,  as  before  remarked,  no  disturbance  of  any 
present  right  of  possession.  The  mortgage  is  in  the  same  pre- 
cise situation  after  the  sale,  as  before.  No  possession  is  involved 
and  no  right  is  disturbed.  It  would  be  strange  if  in  such  a 
case  a  trespass  had  been  committed. 

The  interest  of  a  mortgagee  of  chattels  out  of  possession  and 
without  aji  immediate  right  to  the  possession,  in  some  respects 
resembles  that  of  the  lessor  of  goods  for  a  limited  time.  The 
lessee  in  such  a  case  has  the  present  possession  in  fact  and  by 
right,  but  the  lessor  has  the  ultimate  property,  and  conse- 
quently the  right  of  possession  at  the  end  of  the  time.  The 
title  of  the  lessee  is  vendible  on  execution,  but  it  is  not  neces- 
sary that  in  conducting  the  sale  the  officer  should  specify  that 
he  sells  the  interest  of  the  tenant  only.  A  sale  in  general 
terms,  such  as  was  made  of  the  mortgaged  property  in  this 
case,  passes  such  title  as  the  lessee  had ;  and  inasmuch  as  the 
lessor  is  in  no  respect  injured,  he  can  maintain  no  action  against 
the  sheriff  for  selling  in  that  manner.  That  precise  question 
was  decided  in  Van  Antwerp  v.  Newman,  (2  Cow.  543). 
Chief  Justice  Savage,  in  giving  the  opinion  of  the  court,  re- 
marked that  the  sheriff  had  authority  to  sell  the  interest  of  the 
lessee,  but  that  it  was  not  in  his  power  to  divest  the  lessor  of 
his  property  in  the  goods,  and  that  he  had  not  done  so.  The 
case  does  not  seem  to  me  distinguishable  from  the  one  under 
consideration. 

There  is  another  difficulty  in  the  plaintiff's  case.  How  can 
the  defendants  be  held  to  be  trespassers  for  interfering  with 


164:  ABBOTTS'  PEACTICE  REPORTS. 

Hull  a.  Carnley. 

property,  to  the  possession  of  which  the  plaintiff'  at  the  time  of 
the  act  done  had  no  right  ?  In  Ward  v.  Macauley,  (4  Term  7?., 
489),  the  plaintiff  had  demised  a  house  ready  furnished,  and 
during  the  term  the  lessee  had  a  judgment  recovered  and  an 
execution  issued  against  him,  upon  which  a  portion  of  the  fur- 
niture was  seized  by  the  sheriff,  and  the  landlord  brought 
trespass  against  him.  The  court  held  that  the  plaintiff  could 
not  recover,  on  the  ground  that  the  plaintiff  was  not  in  pos- 
session when  the  alleged  trespass  was  committed ;  but  Lord 
Kenyon,  C.  J.,  intimated  that  trover  might  have  been  main- 
tained. A  similar  question  again  arose  in  Gordon  v.  Harper,. 
(7  ibid,  9),  where  the  action  wras  trover  against  the  sheriff  for 
selling  goods  belonging  to  the  plaintiff  in  the  possession  of  his 
tenant ;  and  it  was  held  that  the  action  could  not  be  main- 
tained. Lord  Kenyon  said  that  what  had  fallen  from  him  in. 
Ward  v.  Macauley,  to  the  effect  that  trover  would  lie  in  such, 
a  case,  was  an  extra-judicial  opinion,  to  which  upon  further 
consideration  he  could  not  subscribe.  Ashurst,  J.,  said  that 
to  maintain  trover  the  plaintiff  must  have  property  in  the 
thing  and  a  right  of  possession,  and  that  unless  both  of  these 
rights  concurred,  the  action  -would  not  lie.  Although  all  the 
forms  of  action  are  abolished,  still  we  must,  in  determining  the 
law  on  a  particular  subject,  in  the  first  place  inquire  under 
what  forms  the  right  claimed  was  formerly  asserted,  and  then 
ascertain  from  adjudged  cases  whether  an  action  could  be 
sustained  upon  the  facts  of  the  case  under  consideration  in  any 
form  heretofore  used.  Trover  or  trespass  would  have  been 
appropriate  remedies  for  the  injuries  complained  of  in  this 
case,  if  any  action  could  have  been  sustained ;  no  injury  to  the 
property  itself  was  proved,  but  the  complaint  was  that  the  de- 
fendant had  illegally  deprived  the  plaintiff  of  its  possession. 
On  the  ground  that  the  defendants  were  justified  by  the  pro- 
cess in  doing  what  they  are  proved  to  have  done,  and  the  fur- 
ther ground  that  the  plaintiff  had  not  such  a  right  of  possession 
as  to  warrant  him  in  bringing  this  action,  we  are  of  opinion 
that  the  judgment  of  the  Superior  Court  was  erroneous  and 
ought  to  be  reversed. 

EDWAKDS,  J.,  rendered  a  dissenting  opinion. 


NEW-YOKE.  165 


Coons  a.  Chambers. 


COONS  a.  CHAMBERS. 

Court  of  Appeals  /  December  Term,  1854. 

EVIDENCE. — EXPLANATION  OF  WRITTEN  CONTRACT. 

It  is  a  question  of  fact,  when  an  instrument  bearing  no  date  was  made. 
•Correspondence  between  the   parties  to  an  agreement,  bearing  date  prior  to  the 

agreement,  is  inadmissible  (the  date  being  unimpeached)  in  explanation  of  the 

written  contract. 

Appeal  from  judgment  for  plaintiff,  upon  report  of  referee. 

This  action  was  brought  in  the  Supreme  Court,  in  the  Third 
District,  to  recover  for  services  alleged  to  have  been  performed 
by  plaintiff  for  defendant,  pursuant  to  a  written  agreement, 
bearing  date  the  thirtieth  November,  1849.  The  cause  was 
referred. 

In  the  course  of  the  hearing  before  the  referee,  the  plaintiff 
offered  in  evidence  with  a  view  to  explain  the  true  construction 
of  the  contract,  a  letter  to  him  from  defendant,  dated  the  nine- 
teenth October,  1849.  The  defendant  objected  that  it  could  not 
be  received  in  evidence  for  that  purpose,  because  it  bore  date 
prior  to  the  contract.  But  the  referee  overruled  the  objection, 
and  admitted  the  evidence.  The  defendant  excepted. 

The  referee  having  reported  upon  the  issues,  in  favor  of  the 
plaintiff,  the  defendant  appealed  from  the  judgment  entered 
on  his  report,  to  the  general  term ;  where  it  was  affirmed  ; 
and  defendant  appealed  to  the  Court  of  Appeals. 

J.  V.  Loomis,  for  appellant. 

G.  Stow,  for  respondent. 

GAKDINEK,  J. — This  action  was  upon  an  agreement  between 
these  parties  under  seal.  The  subjects  of  it  were,  a  patent  for 
the  territory  of  New  York,  for  the  making  and  vending  of  ele- 
vators, for  the  raising  of  muck,  mortar,  merchandise  and  other 
weights,  and  the  construction  of  these  machines  by  the  plain- 
tiff in  pursuance  of  the  specifications  of  the  patent,  and  with 
such  improvements  as  might  be  suggested,  in  the  language  of 
the  agreement,  by  the  inventive  genius  of  the  plaintiff.  The 
•main  controversy  between  the  parties  relates  to  the  meaning 


166  ABBOTTS'  PEACTICE  REPORTS. 


Coons  a.  Chambers. 


and  true  construction  of  the  contract  between  them.  The  ori- 
ginal agreement  was  dated  on  the  30th  of  Nov.,  1849,  and 
was  executed  by  Coons  only.  "  In  connection  with  and  addi- 
tion to"  this  contract,  as  the  instrument  recites,  another  wri- 
ting was  endorsed  on  the  original  contract,  containing  provi- 
sions different  from  it  in  reference  to  the  payment  of  the 
expenses  to  be  incurred  in  the  construction  of  the  machines, 
which  was  executed  by  both  parties,  but  not  under  seal.  The 
defendant  gave  in  evidence  a  third  instrument,  signed  and 
sealed  by  Coons,  the  plaintiff,  bearing  date  the  17th  January, 
1850,  purporting  to  be  a  receipt  of  "  twenty-five  dollars,  part 
of  fifty  dollars,  named  as  funds  which  were  to  have  been  paid, 
on  or  before  the  loth  December  last."  The  receipts  contained 
a  provision  upon  the  part  of  Coons,  "not  to  call  for  the 
remaining  $25  until  after  the  completion  of  two  of  said 
machines  named  in  the  annexed  article,  and  to  await  the 
directions  of  the  defendant,  as  to  the  third,  until  he  should 
conclude  upon  the  form."  The  construction  of  those  various 
instruments,  containing  distinct  stipulations  in  reference  to  the 
same  subject,  depends  essentially,  upon  the  order  of  time  when 
they  were  executed.  If  the  writing  indorsed  in  the  original 
article  was,  as  the  plaintiff  insists,  made  subsequent  to  the 
17th  of  January,  the  date  of  the  receipt,  it  would  annul  or 
materially  modify  the  stipulation  of  that  instrument,  instead 
of  being  controlled  by  them.  This  was  a  question  of  fact, 
which  it  is  to  be  presumed  that  the  referee  has  found  in  favor 
of  the  plaintiff;  which  is  accordingly  approved  by  the  Supreme 
Court,  in  their  opinion,  and  with  which  this  court  will  not 
interfere.  If  the  assumption  is  well  founded,  I  can  perceive 
no  objection  to  the  interpretation  which  the  Supreme  Court 
has  given  to  the  contract,  as  a  whole. 

But  the  case  is  here  presented  on  a  bill  of  exceptions,  and 
upon  the  hearing  before  the  referee,  the  plaintiff  offered  in 
evidence  a  letter  from  the  defendant  to  the  plaintiff,  dated  the 
19th  of  October,  1849,  some  time  prior  to  the  agreement  upon 
which  the  plaintiff  had  counted  in  his  complaint.  It  contains 
directions  to  the  plaintiff  "  to  use  his  best  judgment  in  getting 
up  the  machines,  and  to  do  one  at  a  time,  and  as  cheap  as 
practicable,  and  to  pay  for  the  work  when  completed,"  &c. 


NEW-YOKE.  167 


Everson  a.  Gehrman. 


This  evidence  was  objected  to,  on  the  ground  that  it  was 
anterior  to  the  contract,  and  the  objection  overruled  by  the 
referee,  and  his-  decision  excepted  to  by  the  defendant.  The 
evidence  was  clearly  inadmissible.  The  merits  of  the  contro- 
versy, so  far  as  the  opinion  can  be  formed  from  the  case  before 
us,  would  seem  to  be  with  the  plaintiff.  But  upon  a  bill  of 
exceptions,  I  do  not  perceive  any  way  in  which  the  judgment 
can  be  sustained.  It  must  be  reversed  for  the  reason  assigned, 
with  costs  to  abide  the  event. 


EVERSON  a.  GEHRMAN. 

Supreme  Court,  First  District  •  General  Term,  December,  1854. 
COLLUSION. — CONFESSION  OF  JUDGMENT. — PARTNERSHIP. 

No  power  is  implied  as  within  the  scope  of  partnership  authority,  unless  such  as 

the  partners  can  be  presumed  to  huve  intended  to  grant  to  each  other. 
A  partner  has  no  authority  to  confess  judgment  on  behalf  of  the  firm,  contrary  to 

the  wish  of  the  co-partner. 
Judgment  entered  against  both  upon  an  accepted  offer  of  one  to  let  judgment  be 

taken  against  him,  is  irregular. 
Such  judgment  will  not  be  allowed  to  stand  as  against  the  other  even  as  security, 

where  it  appears  to  have  been  entered  by  collusion  between  the  debtor  offering 

and  the  plaintiff. 

Motion  to  set  aside  judgment. 

The  defendants  were  partners ;  and  were  indebted  to  the 
plaintiff,  who  wras  the  father  of  one  of  them.  He  asked  the 
firm  to  confess  judgment  for  the  debt ;  his  son  was  willing  to, 
but  the  other  partner  refused.  Under  these  circumstances 
the  father  and  son  colluded  to  have  suit  brought  by  the  father 
against  the  son's  firm,  and  the  son,  keeping  the  matter  from 
the  knowledge  of  his  partner,  made  an  offer  in  writing,  signed 
in  his  individual  name,  to  let  the  plaintiff  take  judgment 
against  him.  This  offer  plaintiff  accepted,  and  thereupon 
entered  judgment  against  both  the  defendants.  At  special 
term  on  motion  of  defendant,  Gehrman,  to  set  aside  the  judg- 
ment as  irregular  and  collusively  obtained,  the  judge  allowed 


168  ABBOTTS'  PRACTICE  REPORTS. 

Everson  a.  Gehrman. 

him  to  be  let  in  to  defend,  but  directed  that  the  judgment 
stand  as  security,  and  further  permitted  the  defendant  Ever- 
son, to  amend  his  offer  upon  which  judgment  was  entered,  so 
that  it  should  be  the  offer  of  the  firm,  and  signed  by  the  firm 
name. 

The  defendant  Gehrman  appealed. 

H.  C.  Van  Vorst,  for  defendant  Gehrman,  contended  that 
the  offer  accepted  was  not  that  of  the  defendants,  and  there- 
fore would  not  sustain  judgment  against  both.  The  judgment 
was  moreover  collusive. 

J.  W.  Nye,  for  plaintiff.  The  judgment  was  perfected  in 
strict  conformity  with  sections  136  and  382  of  the  Code.  The 
defendants  are  "joint  debtors."  The  summons  and  complaint 
were  served  upon  the  defendant  Everson,  and  the  plaintiff 
"proceeded  against  the  defendant  served,"  and  "recovered 
judgment,"  which  section  136  authorized  him  to  enter  against 
both,  so  that  it  might  be  enforced  against  the  joint  property 
of  both,  and  the  separate  property  of  the  defendant  served. 

MITCHELL,  J. — The  defendant,  Gehrman,  moved  at  special 
term  to  set  aside  a  judgment  against  him  and  J.  C.  Everson, 
for  irregularity,  and  also  as  entered  by  collusion  between  the 
two  Eversons,  and  in  fraud  of  Gehrman's  rights.  The  motion 
was  denied,  and  the  defendant  Everson  allowed  to  amend  an 
offer  to  confess  judgment,  so  that  it  should  be  in  the  joint 
names  of  the  firm,  instead  of  being  in  his  name  alone.  The 
defendant  Gehrman  appeals. 

It  may  fairly  be  inferred,  from  the  affidavits  in  this  case, 
that  Gehrman  became  indebted  to  the  plaintiff  in  the  year 
1853,  in  a  sum  exceeding  three  or  four  thousand  dollars ;  that 
on  the  1st  day  of  January,  1854,  Gehrman  and  the  plaintiff's 
son  entered  into  partnership,  and  the  debt  remaining  unpaid, 
the  plaintiff  agreed  with  the  defendants,  in  March,  1854,  that 
they  should  give  him  $2,487  45,  and  that  he  should  then  give 
to  his-son  the  balance  due  to  the  plaintiff.  In  April,  1854,  the 
son  gave  to  the  father  $687  45,  in  bills  due  to  the  firm,  and 
the  note  of  the  firm  for  $1,800.  Such  an  agreement,  made  by 


NEW-YOKE.  169 


Everson  a.  Gehrman. 


the  firm  in  good  faith,  and  with  the  concurrence  of  both  of  its 
members,  would  bind  the  firm;  the  loss  of  the  plaintiff  in 
releasing  part  of  his  debt  was  a  sufficient  consideration  for  it. 
In  August  the  plaintiff  applied  to  the  defendants  to  pay  the 
note  of  $1,800,  or  to  secure  it.  They  said  they  could  not.  He 
asked  for  a  judgment,  but  Gehrman  refused  to  give  one  ;  and 
he  swears  that  Gehrman  said  that  if  any  one  sued  him,  he 
would  sell  his  property  and  dispose  of  it  so  that  such  person 
could  not  collect  the  judgment.  At  the  same  time  the  son  was 
desirous  that  judgment  should  be  confessed.  Thus  the  plain- 
tiff and  his  son,  the  partner  of  Gehrman,  each  knew  that 
Gehrman  was  determined  that  the  plaintiff  should  not  have 
any  preference  by  a  judgment  against  the  firm.  With  this 
knowledge,  the  father  and  son  immediately  contrived  their 
plans  and  carried  them  out ;  and  the  question  is,  whether  they 
should  be  aided  by  the  court  to  make  effectual  a  scheme  in 
which  they  colluded  together  to  gain  an  advantage  to  the 
father  over  other  creditors  of  the  firm,  against  the  known  and 
express  wishes  of  Gehrman,  the  other  member  of  the  firm. 

The  facts  clearly  show  that  the  action  against  the  defendants 
was  commenced  and  carried  on  by,  and  all  its  parts  arranged 
in  concert  between,  the  plaintiff  and  his  son,  and  designedly 
concealed  from  Gehrman,  the  partner  of  the  son,  and  with  the 
knowledge  that  he  was  opposed  to  any  such  scheme.  The 
plaintiff's  counsel  admitted  it,  and  while  the  defendants'  coun- 
sel called  it  a  collusion  to  defraud  Gehrman  out  of  his  rights, 
the  plaintiff's  counsel  insisted  that  it  was  a  plan  to  do  good. 

The  plaintiff's  attorneys  lived  in  Madison  county,  not  far 
from  the  residence  of  the  plaintiff;  they  conducted  all  the 
proceedings  and  all  the  papers  in  the  cause,  including  the 
offer  of  the  defendant  Everson,  and  any  other  papers  on  the 
part  of  the  defendant  were  in  their  handwriting. 

The  summons  was  addressed  to  both  defendants ;  it  had  no 
date  to  it.  The  complaint  was  on  the  $1,800  note,  and  was 
sworn  to  by  the  plaintiff  on  the  21st  of  August,  1854.  The 
same  day  the  plaintiff's  attorneys  made  affidavit  of  the  service 
of  the  summons  and  complaint  on  the  defendant  Everson.  At 
this  time  Gehrman  was  in  his  store,  and  could  have  been  also 
served  with  the  same  papers.  And  this  must  have  been  known 


170  ABBOTTS'  PEACTICE  KEPOETS. 


Everson  a.  Gehrman. 


to  the  plaintiff  and  his  attorneys ;  but  they  designedly  refrained 
from  serving  them  on  him,  as  that  would  have  frustrated  their 
scheme.  On  the  same  day,  the  defendant  Everson  signed  a 
paper  stating  that  "  the  defendant,  John  C.  Everson,  hereby 
offers  to  let  judgment  be  entered  against  him  in  favor  of  the 
plaintiff,"  and^  that  judgment  was  thereby  confessed,  in  favor 
of  the  plaintiff,  for  $1,845  50,  besides  costs.  He  signed  in  his 
own  name  only.  On  the  same  day  the  plaintiff's  attorneys 
served  on  the  defendant  Everson,  a  notice  addressed  to  him 
alone,  that  the  plaintiff  accepts  your  offer  to  let  judgment  be 
entered  against  you,  and  made  affidavit  that  he  had  served  it 
on  J.  0.  Everson,  one  of  the  defendants.  On  the  same  day, 
also,  J.  C.  Everson  made  affidavit  that  the  defendants  were 
justly  indebted  to  the  plaintiff  in  $1,800,  and  interest  from 
llth  April,  1854,  on  the  above  note.  On  the  same  day,  at  22 
minutes  after  9  o'clock  in  the  morning,  judgment  was  entered 
against  both  defendants  for  $1,845  50  damages,  and  $10  59 
costs.;  the  papers  above  mentioned  forming  part  of  the  judg- 
ment roll,  and  execution  was  issued,  and  at  about  10  o'clock 
on  the  same  morning,  was  levied  on  the  stock  in  trade  of  the 
firm  of  the  defendants. 

Under  these  circumstances  there  could  be  no  doubt  that  all 
this  was  done  by  father  and  son  in  collusion  with  each  other, 
to  give  a  preference  to  the  father  over  the  other  creditors  of 
the  firm,  and  against  the  known  and  fixed  purpose  of  Gherman, 
one  of  the  members  of  the  firm. 

The  judge  at  special  term  allowed  the  judgment  and  execu- 
tion to  stand  as  security,  and  allowed  the  defendant  Gehrman 
to  defend  the  action,  and  also  permitted  John  C.  Everson  to 
amend  his  offer  to  confess  judgment,  so  that  it  should  appear 
to  be  made  on  behalf  of  the  firm,  instead  of  his  own  behalf 
alone,  and  also  to  sign  the  firm  name  to  the  offer. 

In  Egberts  v.  Wood,  (3  Paige,  517),  the  complaint  alleged 
that  an  assignment  had  been  made  by  Jessup,  without  the 
consent  of  his  partner,  Yandenburgh,  and  sought  to  set  it  aside 
on  that  account,  but  the  answer  denied  this  and  alleged  that  it 
was  made  with  the  consent  of  Yandenburgh ;  this  was  conclu- 
sive on  a  motion  to  dissolve  an  injunction,  as  that  was ;  (see 
pp.  519,  521).  The  chancellor  expressly  avoided  at  that  time 


NEW-YORK.  171 


Everson  a.  Gehrman. 


"  expressing  any  opinion  in  favor  of  the  validity  of  an  assign- 
ment of  partnership  effects  to  a  trustee,  by  one  partner  against 
the  known  wishes  of  his  copartner,  and  in  fraud  of  his  right 
to  participate  in  the  distribution  of  partnership  funds  among 
the  creditors."— (p.  525). 

In  Havens  &  Dorr  v.  Hussey,  &c.,  (5  Paige,  30),  the  chan- 
cellor, repeating  the  language  in  3  Paige,  characterizing  such 
an  assignment  as  a  fraud  on  the  right  of  the  other  partner,  to 
participate  in  the  distribution  of  the  partnership  effects  among 
the  creditors,  held,  "  upon  the  most  deliberate  examination, 
that  such  an  assignment  is  both  illegal  and  inequitable,  and 
cannot  be  sustained."  And  he  stated  the  principle  on  which 
an  assignment  by  one  partner  in  payment  of  a  partnership 
debt  rests,  is  that  there  is  an  implied  authority  for  that  pur- 
pose from  his  copartner,  from  the  very  nature  of  the  contract 
of  the  partnership  ;  the  payment  of  the  company  debts  being 
always  a  part  of  the  necessary  business  of  the  firm  ;  and  that 
"while  either  party  acts  fairly  within  the  limits  of  such 
implied  authority,  his  contracts  are  valid  and  binding  upon 
his  copartner ;"  that  one  member  of  the  firm  may,  therefore, 
without  any  express  authority  from  the  other,  discharge  a 
partnership  debt,  either  by  payment  of  the  money  or  by  trans- 
fer to  the  creditor  of  any  other  of  the  partnership  effects, 
although  there  may  not  be  sufficient  left  to  pay  an  equal 
amount  to  the  other  creditors  of  the  firm ;  but  that  it  is  no 
part  of  the  ordinary  business  of  the  copartnership  to  appoint  a 
trustee  of  all  the  partnership  effects  for  the  purpose  of  selling 
and  distributing  the  proceeds  among  the  creditors  in  equal 
proportions,  and  that  no  such  authority  as  that  can  be  implied. 

The  tests  are  here  furnished,  which  determine  what  acts  a 
partner  may  do ;  he  may  do  whatever  the  articles  of  partner- 
ship expressly  authorize  him  to  do,  and  whatever  is  within  the 
limits  of  an  implied  authority.  It  is  within  the  limits  of  the 
implied  authority  to  do  any  thing  that  falls  within  the  ordi- 
nary business  of  the  firm,  as  to  purchase  goods  within  their 
line  on  cash  or  credit,  and  to  give  the  notes  or  promises  of  the 
firm  for  their  payment,  and  to  pay  for  them  in  money  or  any 
other  effects  of  the  firm.  But  it  is  not  within  the  implied 
authority  to  do  any  act  which,  if  it  were  proposed  to  insert  it 


172  ABBOTTS'  PRACTICE  REPORTS. 

Everson  a.  Gehrman. 

in  the  articles  of  partnership,  each  would  immediately  scout 
at ;  nor  to  do  any  act,  the  effect  of  which  is  net  to  continue 
the  business,  but  to  extinguish  it ;  nor  for  one  member  of  the 
firm  to  appear  in  a  suit  against  the  firm,  not  to  promote  the 
wishes  of  his  copartner,  or  to  defend  the  suit,  but  to  confess  a 
judgment  which  he  knew  the  other  had  declared  he  would  not 
confess ;  nor  to  collude  with  the  plaintiff,  thus  to  defeat  the 
wishes  of  the  one  whom  he  professed  to  represent.  If  it  were 
proposed  to  any  persons  about  to  enter  into  a  partnership, 
whether  they  meant  that  either  partner  might  confess  a  judg- 
ment to  give  a  preference  against  the  wishes  of  the  other, 
there  could  be  but  one  answer  to  it,  and  that  answer  would 
show  that  no  such  power  can  be  implied  as  arising  out  of  the 
intention  of  the  parties,  although  not  expressed.  No  power 
can  be  implied  unless  it  can  be  inferred  that  the  parties 
intended  to  grant  it.  Their  acts  may  show  that  intention  as 
well  as  their  express  words ;  but  in  an  implied  authority  the 
intent  is  as  essential  an  element  as  words  are  in  an  express 
authority.  The  authority  of  partners  is  generally  employed  in 
giving  acknowledgments  of  indebtedness,  or  of  payments  and 
promises  or  obligations  to  pay,  and  in  disposing  of  the  partner- 
ship property.  All  these  are  within  their  ordinary  business. 
They  may  also  prosecute  and  defend  suits.  This  is  on  the 
assumption  that  they  are  acting  for  and  under  the  sanction  of 
their  copartner.  No  such  assumption  can  exist  where  they 
and  the  plaintiff  in  the  suit  know  that  the  partner  is  opposed 
to  their  proceedings. 

There  is  more  reason  for  sustaining  an  assignment  to  a 
trustee  for  creditors,  by  a  single  partner,  than  a  judgment  con- 
fessed or  acknowledged  by  him  in  the  name  of  his  copartner, 
but  against  his  wishes. 

Each  partner  has  an  estate  in  the  partnership  effects,  each 
owns  them  per  my  and  per  tout;  each,  therefore,  has  such  a 
legal  estate  in  them  that  his  act  alone  operates  to  pass  the 
legal  title  in  them  ;  and  it  is  only  because  such  an  assignment 
is  a  fraud  on  the  rights  of  the  copartner  to  participate  in  the 
distribution  of  the  partnership  funds  among  the  creditors,  that 
the  assignment  by  one  to  a  trustee,  against  the  will  of  the 
other,  is  void.  But  in  the  case  of  a  judgment,  confessed  or 


NEW-YOKE.  173 


Everson  a.  Gehrman. 


acknowledged,  the  partner  confessing  it  against  the  wish  of  his 
copartner,  not  only  has  no  authority,  express  or  implied,  to  do 
so,  but  he  also  is  not  acting  in  that  matter  by  virtue  of  any 
estate  which  he  has,  or  directly  upon  the  estate.  In  the  one 
case,  the  estate  which  he  has  could  sustain  the  mere  legal 
estate  which  he  gives;  in  the  other,  the  estate  which  he  has, 
gives  him  no  power  to  act. 

In  Deming  v.  Colt,  before  Justices  Oakley,  Yanderpool  and 
Sandford,  and  in  Hayes  v.  Heyer,  before  Justices  Duer,  Mason 
and  Campbell  (3  Scvnd.,  284),  it  was  decided  that  one  member 
of  a  firm  could  not,  without  the  concurrence  of  his  partner, 
who  was  at  hand  or  capable  of  acting,  make  a  general  assign- 
ment of  the  property  and  effects  of  the  firm  to  a  trustee  for  the 
payment  of  partnership  debts,  even  where  the  payment  was 
without  preferences — that  it  was  not  incident  to  the  right  of 
one  partner  thus  to  select  an  agent  and  clothe  him  with  all  the 
authority  of  the  firm.  Much  less  can  it  be  incident  to  the 
right  of  one  partner  (by  indirection  even)  thus  to  select,  his 
own  favorite,  and  put  him  in  possession  of  the  property  of  the 
firm  against  the  wishes  of  his  co-partner. 

The  defendant,  Everson,  had  power  to  confess  judgment  for 
himself  alone  ;  and  with  that  there  should  be  no  interference ; 
but  not,  under  these  circumstances,  for  his  partner  also  ;  and, 
accordingly,  the  judgment  should  be  made  to  conform  to  the 
confession  or  offer  made  by  him,  and  be  a  judgment  against 
him  individually. 

It  is  not  necessary  to  this  case  to  decide  whether  an  offer  to 
confess  judgment,  after  suit  brought,  made  by  one  defendant, 
in  good  faith,  on  behalf  of  both,  and  with  the  supposed  assent 
of  his  co-partner,  will  not  sustain  a  judgment  against  both. 
Here  the  offer  was-  by  one  alone,  for  himself  alone,  and  the 
judgment  is  irregular,  unless  the  Court  allow  it  to  be  amended ; 
and  that  amendment  would  be  by  authorizing  one  defendant 
to  do  an  act  in  the  name  of  the  other,  which,  it  is  known  to 
the  court,  that  other  never  authorized,  either  expressly  or  by 
implication,  and  which  he  expressly  refused  to  assent  to. 
Neither  such  dissent,  nor  any  collusion  between  the  plaintiff 
and  one  of  the  defendants,  appeared  in  Lippman  v.  Joelson, 
(1  Code  Rep.  N.  S.,  161,  note)  •  nor  in  Hammond  v.  Harris, 


174:  ABBOTTS'  PRACTICE  REPORTS. 

Everson  a.  Gehrman. 

(2  How.  Pr.  R.  115) ;  nor  in  Sterne  v.  Bentley,  &c.,  (3  ibid, 
331)  ;  nor  in  Crane  v.  French,  (1  Wend.,  311) ;  Grazebrook  v. 
McCreedie,  (9  ibid,  437).  Nor  is  this  case  like  those  in  which 
an  attorney  has  appeared  for  both  defendants,  the  court  there 
holding  that  they  could  not  go  behind  the  record  to  inquire 
into  his  authority  to  appear,  as  in  Hammond  v.  Harris,  and 
Sterne  v.  Bentley,  &c.,  Denton  v.  Noyes,  (6  Johns.,  296)  ; 
Grazebrook  v.  McCreedie,  (9  Wend.,  437)  ;  Blodget  v.  Conklin 
and  Arnold,  (9  IIow.  Pr.  R.,  442). 

In  2  IIow.  Pr.  R.,  21 — Groesbush  v.  Brown  and  Johnson — 
Johnson  employed  an  attorney  to  appear  for  both  defendants, 
and  confessed  judgment  against  both.  The  attorney  was  irre- 
sponsible, and  the  judgment  was  set  aside  as  irregular,  and 
Judge  Beardsley  said  that  the  attorney  had  no  authority  to 
confess  judgment  against  Brown.  This  must  have  been  on  the 
principle  that  Johnson,  the  partner,  could  not  authorize  him  to 
do  so.  He  also  said  that  there  was  reason  to  believe  there  was 
collusion  between  Johnson  and  the  attorney  and  the  plaintiff. 
He  also  remarked  that  Johnson  might  have  confessed  judg- 
ment under  the  joint  debtor  act,  the  declaration  being  served 
on  him,  but  that  in  the  case  before  him,  judgment  was  against 
both  defendants.  So  in  this  case,  if  the  defendant  Everson  is 
allowed  to  use  the  name  of  Gehrman,  in  the  offer  of  judgment, 
judgment  must  be  (not  as  on  the  joint  debtor  act  against  the 
property  only,  but)  against  Gehrman,  (as  well  as  Everson,)  if 
Gehrman  had  appeared  in  the  suit. 

In  Blodget  v.  Conklin  and  Arnold,  (9  IIow.  Pr.  R.,  442)  an 
attorney  had  appeared,  in  good  faith  on  his  part,  for  both 
defendants,  and  the  court  allowed  the  judgment  to  stand  as 
security,  but  said  that  "  if  collusion  between  the  plaintiff  or 
his  attorney  and  Arnold,  or  the  attorney  whom  he  employed, 
had  been  satisfactorily  established,  the  case  would  have  been 
entirely  different,  and  the  judgment  would  in  that  case  be  set 
aside  as  against  Conklin."  This  is  but  a  common  instance  of 
the  aversion  which  the  law  always  shows  to  fraud  and  covin. 
So,  in  the  case  of  Sterne  v.  Bentley,  &c.,  Justice  Paige  noticed 
that  "  fraud  or  collusion  between  the  plaintiff  and  the  defend- 
ant, McLaughlin,  or  his  attorney,  was  denied  by  the  plaintiff." 
And  in  Denton  v.  Noyes,  (6  Johns.  R.,  296),  Ch.  J.  Kent  said 


NEW-YOKEL  175 


Everson  a.  Gehrman. 


"  if  there  had  been  any  collusion  between  the  plaintiffs  and 
the  attorney  for  the  defendant,  it  would  have  altered  the  case ; 
but  that  none  was  shown  or  pretended."  Here  the  collusion 
was  between  the  plaintiff  and  one  defendant,  and  if  the  court 
should  sanction  the  amendment  allowed  at  special  term,  it 
would  make  itself  also  their  instrument.  • . 

In  Green,  &c.,  v.  Beales  (2  Cai.,  254),  and  St.  John,  &c.  v. 
Holmes,  (20  Wend.,  609),  the  court  refused  to  set  aside  a  judg- 
ment confessed  against  two  partners,  on  a  warrant  of  attorney 
signed  by  one :  but  there  the  one  confessing  the  judgment 
alone  moved  to  set  it  aside,  and  it  was  good  as  to  him ;  and  it 
might  be  that  the  other  had  assented,  or  did  not  choose  to 
object.  There,  too,  an  attorney  must  have  appeared  for  both. 
But  an  individual  not  an  attorney  cannot  appear  in  court  for 
another  without  the  express  authority  of  that  other. 

If  this  judgment  should  be  sustained,  it  would  open  the  way 
to  one  partner  to  give  preferences  as  he  chose,  to  any  number 
of  creditors  of  the  firm,  against  the  wishes  of  the  other,  and 
so  produce  the  same  effect  as  an  assignment  to  a  trustee  for 
such  purposes,  which  the  partner  could  not  have  made.  It 
would  also  encourage  concealment  and  contrivance  against 
those  to  whom  the  partner  owed  confidence  and  good  faith. 
If  the  partners  cannot  agree,  it  is  best  to  allow  all  the  credit- 
ors to  come  in  equally,  or  the  most  diligent  in  the  fair  and 
regular  practice  of  the  law  to  succeed. 

The  order  should  be  so  modified  as  to  withdraw  from  the 
defendant,  Everson,  the  right  to  make  any  amendment,  and  so 
as  to  set  aside  the  judgment  as  against  the  defendant  Gehr- 
man, with  costs  of  the  appeal. 


176  ABBOTTS'  PKACTICE  EEPOETS. 

Vogel  a.  Badcock. 

VOGEL  a.  BADCOCK. 

Sit/preme  Court,  First  District ;  General  Term,  December,  1854. 
•  PLEADING. — CAUSES  or  ACTION. 

The  right  of  a  party  to  recover  immediate  delivery  of  a  specific  thing  claimed,  given 

by  §  206  of  the  Code,  does  not  deprive  him  of  the  right  to  dispense  with  this 

privilege  and  await  its  restitution  until  he  obtains  judgment. 
Allegations  of  conversion,  and  of  detention,  and  prayer  for  specific  delivery,  and  for 

damages,  held  good  as  a  single  cause  of  action,  and  a  demand  for  only  one  kind 

of  remedy. 
What  allegations  are  sufficient  to  support  claim  for  specific  delivery  and  for  dam- 


It  is  not  necessary  to  allege  the  consideration  of  the  assignment  by  which  the 
plaintiff  claims  title  to  personal  property,  although  such  assignment  was  made 
after  the  conversion  and  during  the  detention. 

Demurrer. to  complaint. 

The  cpmplaint  was,  "  that  on  or  about  the  26th  day  of 
April,  in  the  year  1853,  at  Brooklyn,  in  the  county  of  Kings, 
the  defendant  wrongfully  took  and  converted  to  his  own  use, 
one  black  horse,  of  the  value  of  one  hundred  and  seventy-five 
dollars,  the  property  of  Andrew  J.  Parker.  That  on  the  third 
day  of  June,  in  the  year  1853,  Vhe  said  Andrew  J.  Parker, 
sold  and  assigned  the  said  horse  to  the  plaintiff,  of  which  the 
defendants  afterwards  had  notice.  And  the  plaintiff  says  that 
he  has  demanded  of  the  defendant,  the  possession  of  the  said 
horse,  which  the  defendant  has  refused.  And  he  says,  the 
defendant  has  wrongfully  detained,  and  still  wrongfully 
detains  the  said  horse  from  the  plaintiff  after  demand  made  as 
aforesaid." 

';  Wherefore  the  plaintiff  claims  judgment  for  the  recovery 
of  said  property,  and  damages  for  the  detention  thereof,  to 
the  amount  of  two  hundred  dollars  besides  costs." 

To  this  the  defendant  demurred : 

I.  That  it  did  not  state  facts  sufficient  to  constitute  a  cause 
of  action  ;  in  that  the  only  conversion  alleged  was  before  the 
assignment,  so  that  plaintiff  was  not  wronged  thereby,  and 
that  there  was  no  consideration  for  the  alleged  assignment. 


NEW-YORK.  177 


Vogel  a.  Badcock. 


II.  That  several  causes  of  action  were  improperly  united; 
in  that  the  allegations  of  conversion  were  in  "  trover,"  and 
those  of  detention  were  in  "  replevin." 

III.  That  the  prayer  for  judgment  should  be   either  for 
damages  or  for  delivery.     If  both  were  claimed,  the  causes 
for  which   they  were   claimed  should  be   separately  stated, 
demanding  their  respective  proper  and  separate  relief. 

At  special  term,  judgment  was  given  for  the  defendant  on 
the  demurrer.  The  plaintiff  appealed. 

Waite  and  Fenton^  for  plaintiff. 
G.  P.  Androus,  for  defendant. 

CLERKE,  J. — This  is  an  action  for  the  specific  delivery  of 
personal  property,  and  for  damages  for  unlawfully  detaining  it. 

The  remedy  to  recover  the  specific  thing  claimed  is  pres- 
cribed in  §  206  of  the  Code ;  and,  while  it  allows  the  party  to 
claim  its  immediate  delivery,  it  does  not  deprive  him  of  the 
right  to  dispense  with  this  privilege  and  await  its  restitution 
until  he  obtains  judgment.  The  language  of  §  206  is  :  "The 
plaintiff,  in  an  action  to  recover  the  possession  of  personal 
property,  may  at  the  time  of  issuing  the  summons,  or  at  any 
time  before  answer,  claim  the  immediate  delivery  of  such  pro- 
perty ;"  and  §  207  directs  /what  ought  to  be  done  when  this 
(immediate)  delivery  is  required.  The  action  of  replevin,  as 
defined  and  regulated  by  the  Revised  Statutes,  was  evidently 
confined  to  cases  where  the  immediate  restitution  of  the  pro- 
perty was  claimed.  They  make  it  indispensable  that  the 
action  should  be  commenced  by  writ,  commanding  the  sheriff 
to  replevy  the  goods,  on  the  execution  of  a  bond,  and  pro- 
hibiting the  plaintiff'  from  taking  any  step  until  the  sheriff 
received  the  writ,  with  the  affidavit  and  bond  required ;  for  it 
was  only  then  that  he  could  serve  the  summons,  which  must 
have  been  according  to  the  tenor  of  the  writ.  We  have  seen 
that  the  language  of  the  Code  is  much  more  comprehensive, 
from  its  terms,  leaving  it  optional  with  the  plaintiff  to  take  the 
course  referred  to  in  the  latter  clause  of  §  206 ;  but,  if  he  does 
not  think  proper  to  take  this  course,  I  deem  it  not  only  con- 
sistent with  the  terms  of  this  section,  but  with  the  whole  tenor 
12 


178  ABBOTTS'  PKACTICE  REPORTS. 

Vogel  a.  Badcock. 

and  design  of  the  Code,  to  allow  him  to  seek  the  specific 
recovery  of  property  after,  as  well  as  before  judgment.  It 
will  be  deemed  safer  in  most  cases,  doubtless,  to  claim  imme- 
diate delivery,  as,  before  judgment  could  be  obtained,  the  pro- 
perty may  be  eloigned  or  destroyed,  or  the  wrong-doer  may 
abscond  or  become  insolvent.  On  the  other  hand,  that  course 
has  the  disadvantage  of  requiring  the  plaintiff  to  give  an 
undertaking,  with  one  or  more  sureties,  in  an  amount  double 
the  value  of  the  property — a  favor  which  a  party  may  not  be 
able  to  procure,  or  may  be  very  unwilling  to  ask.  It  is,  there- 
fore, proper  that  a  plaintiff  may  have  the  liberty  of  demand- 
ing the  specific  thing  claimed,  without  being  compelled  to 
demand  it  at  the  commencement  of  the  action.  The  old  action 
of  detinue  undoubtedly  was  abolished  by  the  Revised  Statutes, 
precisely  as  all  other  forms  of  action  were  abolished  by  the 
Code ;  but  the  right  to  reclaim  the  specific  article,  and  to  have 
judgment  and  execution  for  its  restitution,  with  damages  for 
its  detention,  survives,  just  as  the  right  to  recover  the  amount 
due  on  a  promissory  note  remains,  although  assum/psit  has 
shared  the  doom  of  all  other  forms  of  action. 

The  preliminary  statement  in  the  complaint,  that  the  defend- 
ant converted  the  property  to  his  own  use,  does  not  make  the 
action  equivalent  to  trover,  in  which  damages  alone  could 
have  been  claimed.  This  statement  was  unnecessary,  but  does 
not  essentially  affect  the  complaint.  It  would  have  been  suffi- 
cient to  make  the  same  allegations  as  are  usually  contained  in 
cases  where  immediate  delivery  is  demanded,  stating,  after 
alleging  the  assignment,  "  that  the  defendant  has  become  pos- 
sessed of  and  wrongfully  detains  from  the  plaintiff  the  property 
in  question,"  and  concluding  with  the  prayer,  "  that  the 
defendant  be  adjudged  to  deliver  to  the  plaintiff  this  property, 
with  damages  for  its  detention,"  &c. 

In  the  complaint  in  question,  the  plaintiff  asks  to  have  a 
judgment  for  the  specific  property  and  not  for  damages,  except 
for  the  detention.  In  this  there  is  no  incongruity ;  no  mis- 
joinder  of  actions  contrary  to  §  167 — in  fact,  no  joinder  at  all. 
The  complaint  sets  forth  only  one  cause  of  action,  and  demands 
only  one  kind  of  remedy. 

There  can  be  no  difficulty  relative  to  the  assignment.     The 


NEW-YORK.  1T9 


McMasters  a.  Vernon. 


tiling  sought  to  be  recovered  is  not  a  thing  in  action,  but  tan- 
gible personal  property,  which  could  be  sold  or  assigned  at  any 
time  ;  and  whether  the  vendor  had  the  actual  possession  of  it 
or  not,  and  whether  it  was  unlawfully  withheld  from  him  or 
not,  in  no  degree  affected  his  right  to  dispose  of  it,  and  to 
transfer  the  right  of  possession  to  any  other  person.  No  section 
of  the  Code,  therefore,  applies  to  this  case,  except  so  far  as  the 
damages,  accruing  between  the  time  of  the  conversion  and  the 
time  of  the  assignment,  are  concerned.  These  may  be  consid- 
ered a  thing  in  action,  not  arising  out  of  a  contract,  and  there- 
fore within  the  scope  of  section  111.  The  damages  arising 
from  the  continuance  of  the  detention  after  the  assignment, 
accrued  to  the  plaintiff  in  his  own  right,  as  owner  of  the  pro- 
perty. These  can  be  adjusted  at  the  trial.  It  is  not  necessary 
to  allege  a  consideration  for  the  assignment. 

The   demurrer    should    be    over-ruled,  and   the  judgment 
reversed  with  costs,  with  liberty  to  answer. 


McMASTERS  a.  VERNON. 

New  York  Superior  Court ;  Special  Term,  January,  1855. 
COSTS. — ACTIONS  COMMENCED  BEFOEE  THE  CODE. 

In  actions,  at  Common  Law,  pending  in  Courts  of  Record  when  the  Code  took 
effect,  and  tried  afterwards,  the  right  to  costs,  and  the  rate  of  compensation,  are 
governed  by  the  statutes  in  force  at  the  time  the  Code  took  effect. 

Costs  of  proceedings,  subsequent  to  the  verdict,  to  review  decisions  made  at  the 
trial,  and  taken  in  the  mode  prescribed  by  the  Code,  are  governed  by  the  provisions 
of  the  Code.  t 

This  was  an  action  of  assumpsit.  It  was  commenced  and 
issue  was  joined  in  it  before  the  Code.  It  was  tried  in  1852. 
The  jury,  under  the  direction  of  the  court,  found  a  verdict  for 
the  defendant.  The  questions  of  law  arising  in  the  case  were 
directed,  by  the  justice  trying  the  cause,  to  be  first  heard  at 
the  general  term,  and  the  entry  of  judgment  to  be  in  the  mean- 
time suspended.  They  were  so  heard,  and  judgment  was  there 
directed  to  be  entered  in  favor  of  the  defendants. 


180  ABBOTTS'  PKACTICE  REPORTS. 

McMasters  a.  Vernon. 

The  costs  prior  to  and  including  the  verdict,  at  the 
rates  prescribed  by  the  acts  of  1840  and 
1844,  are  $  63  02 

"       "      after  verdict,  at  the  Code  rates,  are  137  50 

"       "         "          "        at  the  rates  prescribed  by  the 

fee  bill  of  1840  and  1844,  are  99  43 

The  questions  now  presented  are,  by  what  rule  are  the  costs 
prior  to  and  including  the  verdict,  to  be  adjusted,  and  are  the 
defendants  entitled  to  $137  50,  or  to  $99  43,  for  their  costs, 
subsequent  to  the  verdict. 

H.  D.  Sedgwick,  for  plaintiff. 
D.  D.  Lord,  for  defendant. 

BOSWORTH,  J. — This  was  a  common  law  action,  was  at  issue 
before  the  Code  was  enacted,  and  was  tried  after  section  459 
was  incorporated  into  the  Code,  by  the  amendments  made  by 
the  act  of  July  10,  1851.  (Laws  of  1851,  p.  876). 

Are  the  costs  for  services  rendered  before  this  amendment 
took  effect,  to  be  taxed  under  the  fee  bill  of  1840,  and  those 
for  services  subsequently  rendered,  under  the  Code,  or  are  they 
to  be  wholly  taxed  under  the  one  law  or  the  other,  and  if  so, 
under  which  of  them  ?  I  speak  now  only  of  the  costs  down 
to,  and  including  the  verdict. 

The  principle  is  deemed  well  settled,  that  the  right  to  costs, 
and  the  rate  of  compensation,  depend  upon,  and  are  controlled 
by  the  statutes  on  that  subject,  in  force  at  the  time  the  right 
to  costs,  if  any  exists,  accrued.  (Supervisors  of  Onondaga  v. 
Briggs,  3  Demo,  173.  The  Brooklyn  Bank  v.  Willoughby,  1 
Sand.  S.  O.,  669.  Kich  v.  Husson,  1  Duer,  618). 

What  laws  were  in  force,  in  respect  to  fcosts  in  such  cases, 
when  the  verdict  in  this  action  was  rendered  ?  The  acts  of 
1840  and  1844  had  not  been  absolutely  repealed.  They  were 
left  by  the  Code  in  full  force  and  effect,  as  to  all  actions  pend- 
ing in  courts  of  law  at  the  time  the  Code  went  into  operation. 

Section  eight  of  the  Code,  expressly  provides,  that  part  two 
of  the  Code  relates  only  to  such  civil  actions  as  may  be  com- 
menced after  the  1st  of  July,  1848,  except  when  otherwise 
provided  therein.  Title  ten  of  part  two,  entitled  "  of  the  costs- 


NEW-YORK.  181 


McMasters  a.  Vernon. 


in  civil  actions,"  contains  the  provisions  of  the  Code  in  relation 
to  costs.  There  is  nothing,  in  any  part  of  that  title,  which 
provides,  or  implies,  that  its  provisions  shall  affect  any  suit 
commenced  before  the  Code  took  effect.  It  necessarily  follows, 
that  section  eight  in  effect  declares,  that  section  303,  which 
repeals  all  statutes  establishing  or  regulating  costs,  applies  only 
to  actions  commenced  after  the  first  of  July,  1848. 

It  was  for  that  reason  that  section  2,  sub.  1,  of  the  act  to 
facilitate  the  determination  of  existing  suits,  passed  April  11, 
1849,  provided  that  section  315  of  the  Code  should  apply  to 
suits  pending  on  the  1st  of  July,  1848.  (Laws  of  1851,  p.  147 
of  the  Appendix).  Section  315  is  found  in  title  ten  of  part 
two  of  the  Code,  and  regulates  the  costs  that  may  be  allowed 
on  a  'motion.  This  shows  clearly  enough,  that  the  legislature 
not  only  did  not  intend  that  an  absolute  repeal  of  the  pre- 
existing statutes  in  relation  to  costs  should  be  effected  by  sec- 
tion 303,  but  on  the  contrary  understood  that  section  8  left 
them  in  force,  and  in  all  respects  applicable  to  actions  at  law 
pending  on  the  1st  of  July,  1848. 

It  necessarily  follows  that  all  the  costs,  except  the  costs  of 
motions,  are  to  be  taxed  by  the  fee  bill  of  1840,  as  amended 
by  the  act  of  1844,  unless  section  459  of  the  Code,  as  it  now 
is,  provides  a  different  rule  as  to  all  or  a  part  of  the  costs. 
That  section  reads  thus : 

"  The  provisions  of  this  act  apply  to  future  proceedings  in 
actions  or  suits  heretofore  commenced  and  now  pending,  as 
follows : 

"  1.  If  there  has  been  no  pleading  therein,  to  the  pleadings 
and  all  subsequent  proceedings. 

"  2.  When  there  is  an  issue  of  law,  or  of  fact,  or  any  other 
question  of  fact  to  be  tried,  to  the  trial  and  all  subsequent  pro- 
ceedings. 

"  3.  After  a  judgment  or  order,  to  the  proceedings  to  enforce, 
vacate,  modify,  or  reverse  it,  including  the  costs  of  an  appeal" 

If  the  effect  of  applying  the  provisions  of  that  act  to  future 
proceedings,  necessarily,  or  by  fair  construction,  was  to  make 
the  rate  of  compensation  fixed  by  the  Code,  the  rule  or  mea- 
sure of  compensation  for  all  future  services  in  pending  suits, 
why  provide  expressly  in  sub.  3  of  this  section,  that  those  rates 


182  ABBOTTS'  PRACTICE  REPORTS. 

McMasters  a.  Vernon. 

should  apply  to  the  proceedings  upon  an  appeal  from  a  judg- 
ment or  order  ? 

If  such  a  provision  was  deemed  necessary  to  justify  such  a 
construction,  in  respect  to  the  costs  of  a  future  appeal  from  an 
order  or  judgment  in  a  pending  suit,  it  is  not  to  be  inferred 
that  the  like  interpretation  was  expected  to  be  given  with 
respect  to  the  costs  of  the  future  proceedings  provided  for  by 
subdivisions  one  and  two  of  the  same  section,  in  the  absence, 
apparently  designed,  of  a  similar  provision  relating  to  them. 
(Rich  v.  Husson,  1  Duer,  620,  621 ;  Fitch  v.  Livingston,  4  Sand. 
S.  C.,  712,  714). 

Section  459,  as  construed  by  this  court,  means,  that  the 
mode  and  form  of  proceeding  prescribed  by  the  Code,  to  be 
had  in  actions  commenced  under.it,  shall  be  pursued  in  actions 
commenced  prior  to  July  1,  1848,  from  the  time  that  section 
took  effect :  Which  party  was  to  have  the  costs  of  such  proceed- 
ings, and  the  rate  of  compensation  the  Code  left,  as  it  always 
had,  to  be  determined  by  pre-existing  statutes.  To  that  con- 
struction there  is  no  exception,  except  in  the  single  instance 
made  by  the  Code  itself,  in  the  concluding  part  of  sub.  3  of 
the  same  section,  viz :  the  costs  of  an  appeal  from  an  order  or 
judgment.  It  is  not  to  be  denied  that  section  459  has  been 
construed  otherwise. 

It  is  thought  by  some,  that  the  effect  of  section  459  on  sec- 
tion 303,  clearly  is,  that  subsequently,  the  old  fee  bill  was 
repealed  as  to  all  future  proceedings,  and  in  force  as  to  all  past 
proceedings.  If  section  459  has  any  effect  on  section  303,  or 
works  a  repeal  either  total  or  partial  of  section  8,  so  far  as  the 
latter  relates  to  the  costs  of  suits  commenced  before  July  1, 
1848,  why  is  this  limited  effect  given  to  its  operation  ? 

If  section  459  has  the  effect  to  apply  the  provisions  of  title 
ten  of  part  two  of  the  Code,  to  pre-existing  suits,  ,then  why  are 
not  the  provisions  of  that  title  to  determine  as  well  the  Tight 
to  costs,  as  the  rate  of  compensation  ? 

The  costs  of  an  appeal  from  a  judgment,  are  in  the  discre- 
tion of  the  court  in  two  cases  only.  (Code,  §  306,  siib.  1  and  2). 
Subdivision  3,  of  section  459,  in  effect  provides  that  the  costs 
of  an  appeal,  as  well  the  right  to  them,  as  the  amount  to  be 
recovered,  must  be  determined  by  the  Code,  and  as  they 


NEW-YOKE. 


McMasters  a.  Vernon. 


would  be,  if  the  action  had  been  commenced  after  the  1st  of 
July,  1848. 

If  a  verdict  is  a  "proceeding"  subsequent  to  the  trial, 
within  the  proper  meaning  of  that  word,  as  used  in  section 
459,  then  it  is  upon  the  amount  of  the  verdict,  that  the  right 
of  a  plaintiff  to  recover,  or  his  liability  to  pay  costs,  is  made 
by  the  provisions  of  the  Code  to  depend. 

A  recovery  of  just  $50,  in  this  case,  as  in  that  of  Rich  v. 
Husson,  would  entitle  the  plaintiff  to  costs.  (Code,  §  304, 
sub.  4).  By  the  Revised  Statutes,  unless  the  plaintiff  recovered 
over  $50,  he  must  pay  costs.  (2  Rev.  Stats.,  §  614). 

In  a  case  like  that  of  Rich  v.  Husson,  would  it  be  sound  to 
hold,  that  for  all  proceedings  down  to  the  time  the  amend- 
ment of  July  10,  1851,  took  effect,  the  plaintiff  must  pay  costs, 
because  the  Revised  Statutes  which  determined  the  right  to 
costs,  and  the  act  of  1840  which  regulated  the  rate  of  compen- 
sation, applied  to  all  proceedings  to  that  time,  and  the  amount 
of  the  verdict  by  those  Statutes  entitled  the  defendant  to  those 
costs,  but  that  for  all  subsequent  costs  the  plaintiff  should 
recover,  because  as  to  those  costs,  section  459,  and  title  ten  of 
part  two  of  the  Code,  controlled,  and  by  the  provisions  of  the 
latter,  the  plaintiff  was  entitled  to  costs,  because  his  verdict 
was  for  a  sum,  which,  by  those  provisions,  carried  costs  ? 

It  must  be  borne  in  mind,  that  the  right  to  costs,  in  actions 
at  law,  prior  to  the  Code,  did  not  depend  upon  the  acts  of 
1840  and  1844,  but  upon  the  Revised  Statutes.  Those  acts 
only  regulated  the  rate  of  compensation. 

Section  303,  of  the  Code  repealed  neither  the  one  nor  the 
other,  as  to  actions  commenced  before  the  first  of  July,  1848, 
but  as  to  such  actions  left  them  in  full  force  and  effect,  in  all 
respects,  except  as  to  the  costs  of  motions  in  pending  suits. 

Section  459,  with  a  view  to  assimilate  the  practice  in  suits 
commenced  before  and  after  it  was  enacted,  provided  by 
subdivisions  one  and  two,  that  the  forms  of  subsequent  pro- 
cedure should  be  the  same  in  both,  to  the  recovery  of  a 
judgment. 

The  words  "  all  subsequent  proceedings,"  as  used  in  those 
two  subdivisions  of  the  section,  are  limited  to  proceedings  ter- 
minating in  the  judgment,  for  the  obvious  reason,  that  subdi- 


184  ABBOTTS'  PRACTICE  REPORTS. 


McMasters  a.  Vernon. 


vision  three  of  the  same  section  provides  for  all  proceedings 
after  judgment,  and  for  the  costs  of  those  proceedings. 

It  being  conceded,  and  uniformly  decided,  that  independent 
of  section  459,  of  the  Code,  both  the  right  to  costs,  and  the 
rate  of  compensation,  in  suits  commenced  before  the  1st  of 
July,  1848,  were  regulated  exclusively  by  pre-existing  law,  it 
seems  to  me  quite  clear,  that  that  section  has  not  repealed  that 
law  as  to  any  proceedings  in  such  actions,  nor  applied  to  them 
the  provisions  of  the  Code  relating  to  costs,  except  as  to  the 
costs  of  an  appeal.  The  costs  down  to  and  including  the  ver- 
dict must,  therefore,  be  adjusted  at  the  rates  prescribed  by 
the  acts  of  1840  and  1844.  As  to  the  costs  of  the  proceed- 
ings to  review  the  decisions  made  at  the  trial,  it  is  to  be 
observed,  that  the  defendant  could  pursue  either  of  two  modes. 

One,  that  which  was  taken,  pursuant  to  section  265,  of  the 
Code. 

The  other  was,  to  allow  a  judgment  to  be  entered ;  and  then 
appeal  from  it.  Such  an  appeal  would  bring  up  for  review 
all  exceptions  taken  to  the  decision  of  the  judge.  If  the  latter 
course  had  been  taken,  there  can  be  no  question  that  the  costs 
of  reviewing  the  decisions  made,  would  be  governed  by  the 
Code. 

In  either  mode  of  reviewing  them,  the  proceedings  would 
be  the  same  throughout,  except  that  in  one  case  notices  of 
appeal  must  have  been  served.  In  either  mode  the  same 
questions  would  be  reviewed  and  upon  the  same  papers, 
except  that  if  an  appeal  had  been  taken,  the  papers  on  which 
the  cause  would  be  heard  before  the  general  term,  would 
show  that  a  judgment  had  been  entered  on  the  verdict. 

The  proceeding  to  review  was  one  provided  by  the  Code, 
was  in  substance  an  appeal  from  the  decisions  made  at  the 
trial,  and  was  as  emphatically  a  distinct  proceeding  had 
*  under  the  Code,  and  by  authority  of  its  provisions,  as  a  formal 
appeal  from  a  judgment.  It  falls  within  the  spirit  of  the  pro- 
visions contained  in  subdivision  3,  of  section  459,  though  not 
within  its  strict  letter,  and  the  costs  for  those  proceedings, 
must  therefore  b&  allowed  at  the  rates  prescribed  by  the  Code. 


NEW-YORK.  185 


Metropolitan  Bank  a.  Lord. 


METROPOLITAN  BANK  a.  LORD. 

New  York  Superior  Court ;  Special  Term,  Jcmuary,  1855. 
PLEADING. — TITLE  TO  PROMISSORY  NOTE. 

When  a  complaint,  upon  a  promissory  note,  in  an  action  against  the  maker  and 
payee,  to  show  title  in  the  plaintiff,  avers  an  indorsement  by  the  payee,  and  a  de- 
livery to  the  plaintiff,  but  not  saying  by  whom,  and  that  the  plaintiff  is  "  the  holder 
and  owner  of  such  note,"  an  answer  which  puts  in  issue  the  latter  allegation, 
and  denies  that  the  payee  ever  delivered  it  to  the  plaintiff,  but  on  the  contrary 
alleges  that  he  delivered  it  to  a  third  person,  whose  name  is  stated,  is  not 
frivolous. 

An  answer,  putting  in  issue  all  the  material  allegations  of  a  complaint,  which  are 
employed  to  show  that  the  title  to  a  note  sued  upon  is  in  the  plaintiff,  and  that 
he  is  the  actual  party  in  interest,  is  not  frivolous. 

Motion  for  judgment  on  frivolous  answer. 

The  complaint  states,  as  the  facts  constituting  the  plaintiff's 
cause  of  action,  that  Lord  made  a  note  dated  July  6th,  1854, 
for  the  sum  of  $1000,  payable  four  months  after  its  date,  to  the 
order  of  Searls,  at  the  Suffolk  Bank,  "which  said  note  was 
afterwards  indorsed  by  the  defendant  E.  C.  Searls,  and  deli- 
vered to  the  plaintiff.  The  due  protesting  of  the  note,  and 
notice  thereof  to  Searls  :  and  "  That  the  plaintiffs  are  holders 
and  owners  of  such  note,  and  that  there  is  due  to  them  thereon 
from  the  defendants  the  sum  of  $1000,  for  which  it  prays 
judgment. 

Lord  answers :  1st,  that  Searls  did  not  deliver  the  note  to 
the  plaintiff,  but  to  the  Suffolk  Bank. 

2d.  "  That  he  has  not  any  knowledge  or  information  suffi- 
cient to  form  a  belief  whether  or  not  the  plaintiffs  are  the 
owners  or  holders  of  said  note,  and  he  therefore  controverts 
and  denies  the  allegations  in  that  behalf  contained  in  the 
complaint. 

3d.  That  the  plaintiffs  have  not  legal  capacity  to  sue,  inas- 
much as  it  does  not  appear  in  or  by  the  said  complaint  that 


186  ABBOTTS'  PKACTICE  KEPOKTS. 

Metropolitan  Bank  a.  Lord. 

they  are  a  corporation  or  in  any  way  or  manner  empow- 
ered to  act  or  sue  under  the  name  or  style  of  the  Metropolitan 
Bank. 

4.  That  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action,  inasmuch  as  it  does  not  appear  that 
the  plaintiffs  have  any  legal  power  or  capacity  to  own  or  hold 
the  said  promissory  note,  or  any  legal  existence  whatever.  It 
claims  the  same  benefit  of  the  3d  and  4th  defences,  as  if 
the  defendant  had  demurred  to  the  said  complaint  for  the 
causes  respectively  set  forth  in  said  3d  and  4th  defences. 

The  plaintiff  now  moves  for  judgment  against  the  defendant 
Lord,  on  account  of  thefrivolousness  of  his  answer. 

P.  U.  Turney,  for  plaintiff. 
Mr.  Smales,  for  defendant. 

BOSWOETH,  J. — The  third  and  fourth  defences,  so  called, 
consist,  neither  of  denials  of  any  allegations  in  the  complaint, 
nor  of  any  averments  of  new  matter  :  the  insertion  of  them  in 
the  answer  is  an  attempt  to  demur  to,  as  well  as  to  answer 
the  complaint.  Neither  of  them,  however,  states  objections, 
which  would  sustain  a  formal  demurrer,  assigning  them  as 
causes  of  demurrer.  (The  Union  Mutual  Ins.  Co.  v.  Osgood 
12  Leg.  Obs.  85). 

An  action  must  be  brought  in  the  name  of  the  real  party  in 
interest.  (Code,  §  111).  To  make  title  to  the  note,  the  indorse- 
ment of  it  by  Searls,  and  a  delivery  of  it  to  the  plaintiffs,  and 
that  they  are  the  holders  and  owners  of  it,  are  averred.  It  is 
not  directly  alleged  that  Searls  delivered  it  to  the  plaintiffs. 
If  the  complaint  can  be  construed  as  meaning  that,  then  that 
allegation  is  denied,  and  the  answer  also  avers,  that  on  the 
contrary,  it  was  delivered  by  him  to  the  Suffolk  Bank.  If  it 
does  not  mean  that,  then  there  is  no  averment  that  it  was 
delivered  to  the  plaintiffs  by  any  one  shown  to  have  a*  right  to 
deliver  it,  unless  it  be  the. further  allegation  that  the  plaintiffs 
are  the  owners  and  holders  of  such  note.  But  this  is  put  in 
issue  by  the  answer.  The  answer  denies  it,  in  a  manner 
allowed  by  the  Code.  The  allegations  made  to  show  that  the 
title  to  the  note  is  in  the  plaintiffs,  are  controverted  by  the 


NEW-YOEK.  1ST 

Shearman  t.  The  New  York  Central  Mills. 

answer.  If  the  issues  made  "by  the  denial  of  these  allegations 
should  be  found  in  favor  of  the  defendant,  the  plaintiff  could 
not  recover.  The  answer,  in  this  view  of  it,  is  clearly  not 
frivolous. 


SHEARMAN  a.  THE  NEW  YORK  CENTRAL  MILLS. 

' 

Supreme  Court,  fifth  District  /  General  Term,  January,  1855. 
PLEADING  BY  CORPORATION. — FRIVOLOUS  ANSWERS. 

Complaint  against  a  corporation  on  a  promissory  note,  made  by  its  agent.  Answer : 
Defendant  has  no  knowledge  or  information  sufficient  to  form  a  belief  that  it  did 
at  the  time,  and  for  the  purpose  stated  in  the  complaint,  by  its  authorized  agent, 
make  its  promissory  note  by  the  name  and  for  the  amount  and  as  is  in  this 
respect  set  forth  in  sa^fc  complaint. 

Held : — I.  That  it  is  bad  pleading  on  the  part  of  a  corporation,  or  of  a  principal,  to 
deny  knowledge  of  such  acts  of  an  agent  as  these. 

II.  That  this  question  being  new,  the  answer  should  not  have  been  stricken  out  as 
frivolous,  for  this  defect. 

III.  That  the  answer  should  however  be  stricken  out  as  frivolous,  for  violating  the 
established  rules  of  pleading,  by  denying  the  allegations  of  the  complaint  con- 
junctively. 

Appeal  from  an  order  striking  out  answer  as  frivolous. 

This  was  one  of  three  similar  actions  brought  against  the 
New  York  Central  Mills.  The  complaints  were  upon  promis- 
sory notes  alleged  to  have  been  executed  to  the  plaintiffs  as  the 
payees  thereof,  by  an  agent  of  the  defendant  thereto  duly 
authorized.  They  contained  the  usual  allegation  of  non- 
payment, and  demand  of  judgment  for  the  amount  thereof; 
and  were  duly  verified.  • 

The  defendants  put  in  the  following  answer  in  each  case, 
verified  by  a  director  of  the  company :  "  This  defendant  has  no 
knowledge  or  information  sufficient  to  form  a  belief  that  it  did 
at  the  time,  for  that  purpose  stated  in  the  complaint  by  its 
authorized  agent,  make  its  promissory  note  by  the  name  and 
for  the  amount  and  as  is  in  this  respect  set  forth  in  said  com- 
plaint, or  that  it  is  indebted  to  the  said  plaintiffs  upon  such  a 
note  as  is  in  the  said  complaint  mentioned." 


188  ABBOTTS'  PRACTICE 'BE  POETS. 


Shearman  a.  The  New  York  Ofentral  Mills. 


The  plaintiffs  moved  at  chambers  for  judgment,  under  sec- 
tion 247  of  the  Code,  on  the  ground  that  such  an  answer  was 
frivolous.  The  motions  were  granted,  and  an  opinion  ren- 
dered, entitled  in  the  suit  brought  by  Thorn  against  the  New 
York  Central  Mills,  which  is  reported  in  10  How.  Pr.  J%.}  19. 

Mr.  Justice  Bacon,  before  whom  the  motion  was  argued, 
held  that  the  pleading  was  bad.  That  a  corporation  was 
bound  to  know  the  acts  of  its  agents  as  far  as  it  would  be  held 
that  an  individual  must  of  necessity  have  knowledge  of  his 
performance  of  similar  acts.  That  the  corporation  were  only 
at  liberty  to  answer  by  an  explicit  admission  or  denial  of  the 
giving  of  the  note :  or  must  set  out  specially  facts  showing 
that  they  had  not  and  could  not  obtain  the  information.  He 
therefore  struck  out  the  answer  as  frivolous.  Appeals  to  the 
general  term  were  taken  from  this  decision,  by  the  defendants. 
The  three  cases  were  argued  on  the  same  papers,  below,  and 
on  appeal. 

M.  H.  Throop,  for  plaintiff. 
P.  Gridley,  for  defendants. 

PRATT,  J. — I.  I  do  not  think  that  the  answer  in  this  case,  made 
as  it  was  by  a  corporation,  was  sufficient  under  the  Code,  were 
there  no  objection  to  it  in  matter  of  form.  If  a  corporation 
may  answer  in  this  manner  in  one  case  it  may  in  all  cases.  It 
is  from  its  nature  under  the  necessity  of  acting  by  agents. 

If  therefore  it  were  endowed  with  all  the  faculties  of  a 
natural  person,  it  would  have  no  actual  knowledge  of  any 
facts. 

It  could  therefore  in  all  cases  deny  knowledge  or  informa- 
tion. But  a  corporation  is  an  artificial  being  which  from  its 
nature  can  have  no  knowledge  or  belief  on  any  subject,  inde- 
pendent of  the  knowledge  or  belief  of  its  agents.  It  is  a 
mere  legal  entity.  It  neither  knows  nor  thinks.  If  therefore 
this  method  of  denial  on  the  part  of  the  corporation  in  this 
case  be  correct,  a  corporation  cannot  be  compelled  in. any 
case  to  admit  or  deny  any  allegations,  even  those  of  its  own 
organization.  It  cannot  be  possible  that  the  legislature  intended 
to  grant  to  them  any  such  dispensation. 


NEW-YORK. 


Shearman  a.  The  New  York  Central  Mills. 


But,  again,  I  do  not  think  that  a  natural  person  should  be 
allowed  to  answer  in  this  form,  a  similar  complaint.  The 
defendant  is  allowed  to  deny  the  allegations  in  the  complaint, 
or  any  knowledge  or  information  sufficient  to  form  a  belief. 
But  when  the  acts  are  alleged  to  have  been  done  by  the  defendant 
himself,  it  has  frequently  been  held  that  he  cannot  answer  in 
this  form,  and  that  such  an  answer  may  be  stricken  out. 

And  when  the  note,  as  in  this  case,  is  alleged  to  have  been 
executed  by  an  agent,  duly  authorized,  it  seems  to  me  the  case 
is  not  materially  changed.  The  authority  of  the  agent  surely 
should  be  deemed  within  the  knowledge  of  the  principal.  If 
there  is  any  want  of  that,  he  may  safely  deny  it.  But  if  his 
authority  be  not  questioned,  the  principal  surely  should  be 
deemed  to  have  knowledge  or  information  of  the  facts  alleged 
sufficient  to  form  a  belief.  It  is  not  sufficient  to  deny  personal 
knowledge  merely,  but  the  defendant  must  deny  all  knowledge 
or  information  sufficient  to  form  a  belief. 

Conceding  the  authority  of  the  agent,  therefore,  the  princi- 
pal should  be  deemed  to  have  all  the  knowledge  which  the 
agent  possesses,  at  least  sufficient  to  form  a  belief  as  to  the 
existence  or  non-existence  of  the  facts  alleged.  The  principal 
must  indeed  have  an  extremely  worthless  agent,  if  the  infor- 
mation which  the  latter  should  give  him  did  not  entitle  it  to 
sufficient  consideration  to  base  a  belief  upon  it.  It  is  true  the 
agent  might  die  or  leave  the  country  before  he  had  communi- 
cated the  fact  to  his  principal,  but  in  such  a  case  this  circum- 
stance might  be  stated  in  the  answer,  and  then  it  would  pre- 
sent a  case  in  which  a  denial  of  knowledge  or  information 
would  be  proper.  But  as  a  general  rule,  the  principal  should 
be  deemed  possessed  of  all  the  knowledge  of  the  agent  in  the 
transaction  of  his  business.  It  seems  to  me  therefore  that  the 
right  to  answer  in  the  form  under  consideration  was  not 
designed  for  such  a  case,  and  the  rule  applied  to  the  allega- 
tions of  facts  on  the  personal  knowledge  of  the  party  should 
be  applied  to  cases  of  this  kind.  And  if  a  natural  person 
would  have  no  right  to  plead  in  this  form,  still  less  should  the 
right  be  extended  to  a  corporation  which  must  not  only  act  by 
agents,  but  plead  also  by  agents. 

It  was  objected  that  the  answer  might  be  false,  but  it  could 
not  be  deemed  frivolous. 


190  ABBOTTS'  PRACTICE  REPORTS. 

Shearman  a.  The  New  York  Central  Mills. 

In  the  case  of  an  answer  by  a  corporation,  falsehood  could 
scarcely  be  predicated  upon  it.  At  least  it  might  answer  by 
some  agent  entitled  to  answer  who  was  not  acquainted  with 
the  facts,  so  that  falsehood  cou^d  not  be  charged  against  it. 
If,  therefore,  it  cannot  be  deemed  bad  pleading,  there  is  no 
remedy  in  such  case.  But  I  think  the  objection  is  not  tenable. 
This  form  of  answer  was  not  designed  by  the  Code  for  cases 
where  the  facts  are  charged  to  be  in  the  defendant's  personal 
knowledge,  or  where  the  defendant  may  be  legally  chargeable 
with  knowledge.  Take  away  therefore  the  sanction  which  the 
Code  gives  to  that  form  of  answer,  and  it  will  not  be  claimed 
that  it  would  constitute  any  answer  to  the  allegations  in  the 
complaint.  It  would  be  most  palpably  frivolous.  I  am  of 
opinion  therefore  upon  the  simple  question  upon  the  sufficiency 
or  insufficiency  of  the  answer  as  a  pleading,  that  it  is  bad. 

II.  But  conceding  the  answer  to  be  insufficient  as  a  pleading, 
it  by  no  means  follows  that  it  should  have  been  held  frivolous. 

To  authorize  a  judge  at  chambers  to  give  judgment  on 
account  of  the  frivolousness  of  the  pleading,  it  should  be  pal- 
pably bad.  Section  24/T  of  the  Code,  in  my  opinion,  was 
only  intended  to  apply  to  those  pleadings  so  palpably  frivolous, 
under  the  most  obvious  rules  of  pleading,  as  to  raise  the  pre- 
sumption that  they  were  put  in  for  the  purpose  of  delay. 

I  have  in  my  own  practice  adopted  the  rule  observed  by  the 
late  supreme  court  in  regard  to  demurrers  noted  as  frivolous. 
If  the  pleading  is  not  so  palpably  bad  as  not  to  require  an 
argument  in  support  of  the  motion,  I  refuse  to  grant  judgment 
upon  it.  The  motion  for  judgment  on  account  of  the  frivolous- 
ness  of  a  pleading,  is  a  very  summary  proceeding.  There  is  no 
power  given  to  the  judge  to  allow  an  amendment,  but  the 
other  party  if  successful,  may  perfect  judgment  at  once.  The 
manifest  design  of  this  provision  of  the  Code  is  to  prevent, 
under  a  pretence  of  pleading,  unnecessary  and  vexatious 
delays.  Hence  in  all  cases  when  the  question  is  doubtful  upon 
the  sufficiency  of  the  pleading,  or  where  the  question  presented  is 
important,  and  has  not  been  previously  adjudicated,  the 
motion  should  be  denied,  and  the  party  left  to  his  demurrer, 
or  application  to  the  court.  Applying  these  rules  to  the  present 
case,  the  answer  could  scarcely  be  held  to  be  frivolous  upon 
this  point. 


NEW-YOKE.  191 


Shearman  a.  The  New  York  Central  Mills. 


In  the  first  place  it  comes  within  the  words  of  the  Code. 
Until  therefore  it  be  decided  that  the  general  language 
employed  is  subject  to  some  restriction,  we  ought  not  to  pre- 
sume that  the  object  of  the  parity  was  delay  merely.  Secondly, 
Judge  Bacon  in  his  very  able  opinion,  concedes  that  the  ques- 
tion presented  is  an  important  one  upon  the  construction  of  the 
Code,  and  that  it  has  not  yet  been  adjudicated  by  our  courts. 
Thirdly,  the  counsel  who  argued  the  motion,  manifestly  did 
not  deem  the  question  a  very  clear  one  on  his  side,  if  his  very 
able  and  learned,  not  to  say  lengthy  argument,  affords  any 
indication  of  his  views  upon  the  question.  It  seems  to  me, 
therefore,  that  upon  this  point  the  answer  should  not  have 
been  held  frivolous,  and  if  there  was  no  other  objection  to  it 
as  a  pleading,  judgment  should  not  have  been  given  for  the 
plaintiff  upon  it. 

III.  But  there  is  an  objection  to  the  answer,  which,  although 
it  did  not  receive  so  much  attention  from  the  counsel  upon  the 
argument,  strikes  me  as  being  somewhat  formidable. 

This  method  of  answering  is  equivalent  to  a  denial  or  tra- 
verse of  the  allegations  of  the  complaint,  and  the  denial  of 
knowledge  or  information  as  to  those  allegations  should  be  as 
explicit  as  a  direct  denial  of  them.  Now  it  is  one  of  the  most 
familiar  and  elementary  rules  of  pleading,  that  the  pleader 
shall  traverse  the  substantial  allegations  of  the  other  party. 
It  is  not  sufficient  to  deny  them  in  the  conjunctive  form  under 
all  the  particulars  of  time,  place,  and  circumstance,  but  the 
material  allegations,  and  they  alone,  should  be  put  in  issue. 
(Stephens  on  Pleading,  246  ;  1  Chitty  on  Pleading r,  647 ;  11 
Paige,  238 ;  8  How.  Pr.  R.,  159). 

The  answer  in  this  case  denies  knowledge  or  information 
sufficient  to  form  a  belief  that  the  defendant  made  its  pro- 
missory note  as  it  is  set  out  in  said  complaint.  It  simply 
denies  the  making  of  the  note  under  all  the  circumstances 
of  time,  place,  and  form,  as  stated  in  the  complaint,  thus 
leaving  it  entirely  uncertain  whether  a  material  or  immaterial 
issue  was  designed  to  be  presented.  This  was  palpably  bad 
pleading  under  the  old  system  of  practice,  when  a  very  slight 
variance  between  the  instrument  set  out  and  that  proved,  was 
fatal.  For  a  much  stronger  reason  would  it  be  bad  under  the 
present  practice  when  variances  that  would  formerly  have  been 


192  ABBOTTS'  PRACTICE  REPORTS. 


The  Canal  Bank  a.  Harris. 


held  fatal,  are  now  entirely  disregarded.  In  this  respect  I 
think  the  answer  controverted  so  familiar  and  well  settled  a 
rule  of  pleading,  that  it  was  properly  held  frivolous. 

The  order  at  special  term  should  therefore  be  affirmed. 

(Decided  by  Ilubbard,  Pratt,  and  Bacon,  J.  J.) 


THE  CANAL  BANK  a.  HARRIS. 

Supreme  Court,    first  District;    General   Term,  December, 
1854.    (Two  suits  between  same  parties]. 

MOTIONS. — FIRST  JUDICIAL  DISTRICT. 

The  fair  import  of  §401  of  the  Code   is,   that  no  motion   shall    be  made  in  the 
First  Judicial  District  in  a  cause  in  which  the  venue  is  laid  in  another  district. 

Motion  to  vacate  executions  in  both  suits. 
The  facts  appear  in  the  opinion. 

MOKRIS,  J. — In  both  of  these  cases  judgments  were  entered 
in  this  court,  in  the  county  of  Albany,  in  the  Fourth  Judicial 
District.  Executions  on  each  of  said  judgments  have  been 
issued  to  the  city  and  county  of  New  York,  the  First  Judicial 
District,  where  the  plaintiff  resides.  The  defendant  applies  to 
this  court  to  set  aside  the  executions,  for  irregularity,  because 
they  were  issued  after  the  expiration  of  five  years  since  the 
entering  of  judgment,  without  first  having  obtained  permission 
of  the  court.  The  plaintiffs  object  to  the  court  in  this  district 
entertaining  the  motion,  and  claim  that  section  401  of  the 
Code  sustains  them  in  the  objection.  The  words  rested  upon 
are  :  "  And  no  motion  can  be  made  in  the  First  District  in  an 
action  triable  elsewhere."  The  fair  import  of  those  words  isr 
that  no  motion  shall  be  made  in  the  First  District  in  a  cause 
in  which  the  venue  is  laid  in  another  district.  The  present  is 
a  motion  in  these  two  causes,  and  such  motion  can  only  be 
made  in  the  causes.  The  title  of  the  papers  shows  it  is  in  these 
two  causes,  and  the  venue  in  each  said  cause  is  not  in  the 
First  District. 

Section  401  of  the  Code  applies.  This  court  should  not 
entertain  the  motion.  Motion  to  vacate  execution  -to  be  made 
in  the  Fourth  Judicial  District. 


NEW-YOKE.  *  193 


The  ninety-nine  Plaintiffs  a.  Vanderbilt. 


THE  99  PLAINTIFFS  a.  VANDERBILT. 

Supreme  Court,  First  Digtricl  /  Special  Term. 
New  York  Superior  Court  /   General  Term. 
New  York  Common  Pleas  /  Special  Term. 
January,  1855. 

* 

POWER  OF  COURT  OVER  ATTORNEYS. — RIGHT  TO  CALL  FOR 
INFORMATION. 

The  court  may  compel  an  attorney  bringing  suits  on  behalf  of  a  number  of  persons, 
as  plaintiffs,  against  one  defendant  to  disclose  the  names  and  residences  of  his 
clients. 

They  may  also  require  him  to  exhibit  his  authority  to  bring  the  suits. 

Order  to  show  cause  why  the  attorney  of  the  plaintiffs  should 
not  furnish  certain  information. 

There  were  ninety-nine  suits  brought  in  behalf  of  ninety- 
nine  different  plaintiffs,  against  the  proprietor  of  the  line  of 
vessels  known  as  "  Vanderbilt's  line  for  California  and  Nicara- 
gua." Nineteen  of  these  suits  were  brought  in  the  Supreme 
Court,  forty-six  in  the  Superior  Court,  and  thirty-four  in  the 
Common  Pleas.  They  were  all  brought  by  the  same  attorney. 
The  causes  of  action  in  the  suits  were  alike,  the  same  printed 
form  of  complaint  being  used  in  each  case. 

The  complaint  contained  six  counts.  The  ground  of  each 
action  was  in  substance  that  the  defendant  was  a  common 
carrier,  and  owner  of  a  certain  line  of  vessels  and  conveyances, 
used  in  the  transportation  of  passengers  and  baggage  from  the 
port  of  New  York  to  the  port  of  San  Francisco  in  California, 

by  the  way  of  Nicaragua.  That  on  the  —  day  of ,  1852, 

he  received  the  plaintiff  on  board  of  one  of  the  vessels  of  said 
line  as  a  passenger,  to  be  conveyed  from  the  city  of  New  York 
to  San  Francisco  aforesaid,  for  hire  and  reward.  That  it  then 
became  his  duty  to  carefully  convey  him  as  soon  as  he  rea- 
sonably could,  without  delay — furnish  him  with  bed  and  accom- 
modation, good  and  sufficient  food,  &c. — to  have  provided 

sufficient  room,  and  not  overcrowded  the  same.     The  com- 

13 


194  ABBOTTS'  PRACTICE  REPORTS. 


The  ninety-nine  Plaintiffs  a.  Vanderbilt. 


plaint  then  stated  various  violations  and  neglect  of  the  obliga- 
tions thus  assumed,  the  injury  and  damage  resulting  from 
them,  and  demanded  judgment  for  the  damages. 

Early  in  October,  1854,  the  defendant  obtained  in  the 
Superior  Court  an  order  in  tie  suits  brought*in  that  court, 
requiring  the  attorney  for  the  plaintiffs  to  show  cause  as  fol- 
lows: 

1.  Why  he  should  not  furnish  to  the  attorney  of  the  defend- 
ant, a  sworn  statement,  showing  the  Christian  names  in  full, 
and  the  residences  of  the  plaintiffs  in  the  actions  respectively, 
and  specifying  the  state,  county,  and  town,  or  village  where 
such  plaintiffs  respectively  resided  ;    and  if  they  or  any  of 
them,  resided  in  a  city,  the  street -and  number  of  their  residence. 

2.  Why  he  should  not  be  required  to  produce  such  plaintiffs 
personally  in  court,  or  to  furnish  proof  that  the  plaintiff  in 
each  case  is  living. 

3.  Why  he  should  not  furnish  proof  of  his  authority  to  pro- 
secute the  actions,  and   disclose  the   means  by  which  such 
authority  was  communicatexl ;  if  in  writing,  why  he  should 
not  deposit  the  writing  with  the  clerk. 

4.  Why  he  should  not,  (in  case  the  court  should  permit  the 
actions  to  proceed),  file  security  for  costs  in  those  actions  in 
which  the  plaintiffs  should  appear  to  be  non-residents  of  the 
State. 

5.  Why,  (if  the  court  should  permit  the  actions  to  proceed), 
the  complaints  should  not  be  set  aside  as  not  conformable  to 
§  142  of  the  Code  ;  or  why  the  plaintiffs  should  not  be  com- 
pelled to  elect  on  which  of  the  counts  or  causes  of  action  they 
would  rely,  and  why  the  residue  should  not  be  stricken  out. 

6.  Why  the  proceedings  in  all  the  actions  except  one,  should 
not  be  stayed,  until  such  action  should  be  determined ;  and 
why  the  defendant  should  not  have  such  other  order  as  might 
be  proper. 

From  the  affidavits  on  the  part  of  defendant  on  which  this 
application  was  based,  it  appeared  that  the  defendant  was  the 
owner  of  the  line  called  Vanderbilt's  line  for  California  and 
Nicaragua ;  but  was  not  the  owner  of  the  S.  S.  Lewis,  the 
vessel  by  which  passengers  were  to  be  carried  from  San  Juan 
del  Sur  to  San  Francisco.  It  was  between  these  two  latter 


NEW-YOKE.  195 


The  ninety-nine  Plaintiffs  a.  Vanderbilt. 


points  that  the  delay  complained  of,  took  place.  One  D.  B. 
Allen  was  however  agent  for  the  whole  line,  and  he  sold 
tickets  to  San  Francisco,  to  passengers,  at  the  only  office  of  the 
defendant's  line.  Allen,  as  agent  of  the  line,  engaged  the 
S.  S.  Lewis  to  sail  from  New  York  in  March,  1852,  to  go  to 
San  Juan  del  Sur,  and  take  passengers  from  thence  to  San 
Francisco ;  but  she  was  delayed  in  going  round  Cape  Horn, 
in  consequence  of  which  the  passengers  were  delayed  at  San 
Juan  del  Sur,  and  obliged  to  betake  themselves  to  a  sailing 
vessel,  of  which  Mead  &  Co.,  were  agents,  to  take  them  to 
San  Francisco.  It  was  also  stated  that  Mead  &  Co.,  received 
in  payment  for  the  passage  on  board  their  vessel,  the  tickets 
issued  by  Allen  for  the  S.  S.  Lewis. 

The  affidavits  also  stated  that  some  of  the  plaintiffs  were 
dead, — that  some  of  the  complaints  did  not  furnish  the  full 
Christian  names  of  the  plaintiffs,  but  only  their  initials, — that 
the  attorney  of  the  plaintiffs  being  called  upon  for  his  autho- 
rity to  commence  these  suits,  declined  to  exhibit  any  except 
the  passenger  tickets  for  the  S.  S.  Lewis,  issued  by  Allen. 

Mead  &  Co.,  reside  at  San  Juan  del  Sur.  One  of  that  firm, 
however,  being  casually  in  New  York,  made  affidavit  that  they 
authorized  the  suits,  and  did  so  by  virtue  of  a  verbal  and 
written  power  of  attorney  from  each  of  the  plaintiffs,  and  that 
the  written  power  had  been  burnt. 

Upon  the  return  of  the  order  to  show  cause,  in  the  Superior 
Court,  the  application  was  reserved  to  be  considered  at  general 
term. 

An  application  substantially  similar  was  subsequently  made 
in  the  Supreme  Court,  and  also  in  the  Common  Pleas,  in  the 
suits  brought  in  those  courts. 

A  consultation  upon  the  subject  was  had  among  the  judges 
of  the  three  courts,  and  they  agreed  in  opinion  that  they  might, 
and  under  the  circumstances  ought  to,  require  the  attorney  of 
the  plaintiffs  to  disclose  the  names  and  residences  of  his 
clients,  and  his  authority  to  bring  the  suits.  The  decision  to 
this  effect  was  rendered  early  in  January ;  and  an  order  requir- 
ing the  attorney  to  furnish  that  information,  and  meantime 
staying  proceedings  in  the  several  suits  until  the  further  order 
•of  the  court,  was  drawn  up  by  Mr.  Justice  Hoffman  of  the 


196  ABBOTTS'  PKACTICE  REPORTS. 

The  ninety-nine  Plaintiffs  a.  Vanderbilt. 

Superior  Court,  and  Judge  "Woodruff  of  the  Common  Pleasr 
and  was  made  and  entered  in  each  of  the  suits  in  those  two 
courts.  This  order  is  given  in  full  in  the  opinion  of  Mr.  Jus- 
tice Hoffman,  below.  The  order  in  the  Supreme  Court  was 
left  to  be  settled  pursuant  to  the  opinion  rendered  in  that  court. 

W.  Sillimari)  attorney  for  plaintiffs  and  of  counsel. 
H.  F.  Clark,  attorney  for  defendant,  and  of  counsel. 

The  following  opinions  were  rendered  in  the  Supreme  and 
Superior  courts  upon  granting  the  order. 

SUPREME  COURT.— MITCHELL,  J.  —  (After  stating  the- 
facts  upon  which  the  application  was  based).  The  right  of  the 
court  to  compel  an  attorney  of  the  court  to  exhibit  his  autho- 
rity to  sue,  arises  from  the  control  which  it  exercises  over  all 
its  process  and  proceedings,  and  over  its  officers  in  order  to- 
prevent  abuse.  It  arises  from  no  statute,  but  emanates  from 
the  breast  of  the  court,  and  from  its  desire  to  cause  justice  to 
be  done ;  and  as  it  emanates  from  the  court,  so  it  is  to  be 
exercised  only  on  such  terms  and  conditions,  and  in  such 
manner  as  the  court  shall  perceive  will  contribute  to  justice 
between  the  parties.  The  defendant  cannot  insist  on  its  exer- 
cise as  an  absolute  right,  without  submitting  to  such  terms  as 
the  court  may  impose.  He  cannot  insist  that  the  action  be 
dismissed  because  the  power  is  not  produced,  nor  that  it  be 
stayed  forever  unless  it  be  produced,  but  in  all  cases  must 
ask  for  the  exercise  of  the  discretion  of  the  court,  and  submit 
accordingly  to  such  terms  as  the  court  may  choose  to  impose 
as  a  condition  of  its  exercise  of  such  discretion. 

There  is  reason  to  believe  that  the  plaintiffs'  attorney  has  no 
knowledge  of  the  plaintiffs  in  this  action,  that  he  has  never 
seen  them,  and  has  never  had  any  authority  from  them  to  sue 
except  such  as  was  given  to  Mead  &  Co.  "What  the  extent  of 
that  authority  was,  is  left  quite  uncertain.  Mead  &  Co.  do 
not  state  even  its  substance ;  although  it  is  burnt,  they  can 
state,  and  should  state,  according  to  their  best  recollection  and 
their  best  means  of  obtaining  information,  in  what  precise 
words  it  was  written.  Then  the  court  can  judge  whether  it 


NEW-YORK.  197 


The  ninety-nine  Plaintiffs  a.  Vanderbilt. 


•was  an  authority  to  sue  merely  for  the  consideration  money 
paid  for  the  passage  from  San  Juan  del  Sur  to  San  Francisco, 
or  for  that  and  also  for  the  loss  and  injury  to  the  plaintiffs, 
•caused  by  the  delay  to  which  they  were  subjected  and  for  the 
inadequate  food  and  accommodations.  These  last  grievances 
were  personal  to  the  passengers  and  probably  could  not  be 
assigned — the  first  admitted  of  being  assigned.  The  possession 
of  the  tickets  by  Mead  &  Co.  leads  to  the  presumption  that 
they  received  the  tickets  (as  the  defendant  alleges)  in  payment 
of  passages  furnished  by  them  in  their  brig  to  the  passengers, 
and  under  a  verbal  authority  to  recover  from  whoever  was 
liable  the  amount  paid  for  such  tickets.  Thus  far  Mead  &  Co. 
show  &prima  facie  authority  to  sue  in  that  limited  way,  and  if 
niey  chose  to  confine  their  actions  to  such  a  claim  there  is  no 
reason  for  staying  their  proceedings.  The  defendant  shows  no 
defence  to  the  action,  but  alleges  facts  from  which  it  is  to  be 
inferred  that  he  held  himself  out  to  passengers  as  furnishing  to 
them  tickets  which  would  carry  them  through  the  whole  dis- 
tance from  New  York  to  San  Francisco,  and  that  representa- 
tion he  should  make  good ;  and  if  Mead  &  Co.,  to  save  his 
honor,  have  forwarded  passengers  whom  he  contracted  to  for- 
ward, but  by  accident  could  not  forward,  he  should  without 
delay  fully  reimburse  them,  at  least  all  that  he  received  for 
the  tickets  for  the  part  of  the  voyage  which  they  completed 
in  his  place.  Yet  he  has  allowed  more  than  three  years  to 
elapse  and  has  not  yet  paid  the  money  thus  spent  by  Mead  & 
Co.  for  his  benefit  and  for  the  sustaining  of  his  honor  as  a  mer- 
chant. He  therefore  should  submit  to  such  terms  as  justice 
will  require,  and  as  will  prevent  the  power  of  the  court  to  stay 
the  plaintiffs'  proceedings  from  being  abused.  The  power 
originates  from  a  desire  to  prevent  abuse  on  one  side,  and  must 
be  exercised  with  such  limitations  as  will  prevent  abuse  on  the 
other  side.  He  seems  to  consider  it  a  defence  that  the  S.  S. 
Lewis  left  so  shortly  before  these  passengers  left  New  York, 
that  they  ought  to  have  known  that  they  could  not  go  by  it. 
This  would  show  that  he  knew  they  could  not  go  by  it,  and  so 
that  he  contracted  to  do  what  he  knew  he  could  not  do — but 
the  passengers  canot  be  presumed  to  know  any  such  matters. 
There  is  no  fraud  imputable  to  Mead  &  Co.,  or  their  attor- 


198  ABBOTTS'  PRACTICE  REPORTS. 

The  ninety-nine  Plaintiffs  a.  Vanderbilt. 

ney,  but  their  affidavits  do  not  show  with  certainty  whether 
the  instrument  executed  to  them  was  an  assignment  or  a  mere 
power  of  attorney,  nor  what  the  extent  of  the  power  was,  and 
until  that  be  shown  they  should  not  be  allowed  to  use  the 
names  of  these  plaintiffs.  If  it  is  a  mere  power  to  sue  on  the 
ticket,  they  have  no  right  to  retain  all  the  counts  contained  in 
these  complaints ;  and  then  they  have  no  power  to  sue  even  in 
their  own  names  for  the  passengers  who  are  dead,  for  the 
power  would  cease  at  the  death  of  the  constituent.  If  it  is  an 
assignment  with  a  power,  the  power  survives — but  under  our 
Code  the  suit  would  necessarily  be  in  the  name  of  the  assignee, 
and  be  confined  to  such  matters  as  could  pass  by  assignment. 
For  these  reasons  the  very  words  of  the  instrument  containing 
the  power  should  be  stated  as  nearly  as  practicable. 

The  court  would  not  attempt  in  this  interlocutory  proceed- 
ing to  prevent  the  Meads  from  suing  in  their  own  name  for 
any  cause  of  action,  nor  from  suing  in  the  names  of  the  plaintiffs 
for  any  thing  which  the  plaintiffs  have  authorized  them  to  sue 
for — but  it  has  the  same  right  to  compel  them  to  show  their 
authority  for  using  a  third  party's  name,  which  it  has  to  com- 
pel an  attorney  of  this  court  to  show  it.  The  attorney  is  called 
on  for  his  authority,  and  refers  to  the  Meads  as  his  immediate 
constituents — that  is  showing  no  authority  from  the  plaintiffs, 
until  the  Meads  show  how  far  they  are  authorized  by  the  plain- 
tiffs to  act.  If  it  should  appear  that  the  instrument  given  to 
the  Meads  was  an  assignment,  so  that  the  action  should  be  in 
their  names,  the  court  might  impose  as  a  condition  of  any  stay 
that  the  defendant  ^hould  stipulate  not  to  raise  that  as  an 
objection,  the  court  regulating  the  matter  of  costs  as  might  be 
deemed  just;  it  might  also  require  the  defendant  to  admit  the 
facts  as  to  his  connection  with  this  line,  and  require  him  to 
expedite  the  trial  of  the  cause,  and  to  put  in  an  answer 
promptly,  and  consent  to  the  issuing  of  commissions  and  exam- 
ine witnesses  without  prejudice  to  the  present  motion  and  to 
the  order  to  stay  the  trial ;  and  also  to  consent  not  to  object 
at  the  trial  to  a  variance  between  the  complaint  as  alleged  and 
as  it  may  be  proved.  One  necessity  for  the  numerous  counts 
in  the  complaint  is  the  uncertainty  whether  the  proof  will 
show  the  contract  to  be  to  carry  from  San  Juan  del  Sur  to  San 


NEW-YORK.  199* 


The  ninety-nine  Plaintiffs  a.  Vanderbilt. 


Francisco,  or  directly  through  all  the  distance  from  New  York 
to  San  Francisco,  and  yet  the  difference  does  not  affect  the 
rights  of  the  parties,  and  should  not  therefore  be  objected  to  at 
the  trial.  If,  as  has  been  intimated,  the  defendant  is  ready  to 
do  what  is  just,  the  whole  matter  may  now,  perhaps,  be  ad- 
justed. 

There  are  other  matters  moved  for  as  to  which  it  is  unneces- 
sary now  to  pass ;  the  draft  of  an  order  for  staying  proceed- 
ings will  be  submitted  to  the  counsel,  that  the  plaintiffs'  attor- 
ney may  suggest  such  conditions  as  he  may  deem  necessary, 
and  the  defendant's  attorney  may  submit  amendments  thereto. 
The  stay  is  to  be  until  the  further  order  of  the  court,  so  as  to 
be  under  the  control  of  the  court. 

SUPERIOR  COURT.— OAKLEY,  C.  J.— (Orally)— A  ques- 
tion presented  in  this  case  is,  how  far  this  Court  can  control 
the  actions  of  its  attorneys.  Upon  consideration  we  have  come 
to  the  conclusion,  both  on  principle  and  authority,  that  we 
have  the  power,  and  that  it  is  our  duty,  if  the  case  demands  it, 
to  order  the  attorney  to  disclose  the  residences  and  individuali- 
ties of  his  clients,  who  they  are  and  where  they  are  to  be 
found. 

The  defendant  cannot  always  be  aware  who  are  his  oppo- 
nents. It  may  happen,  and  in  this  case  it  does,  that  he  may 
be  attacked  by  a  number  about  whom  he  knows  nothing.  We 
think  this  power  is  involved  in  the  general  powers  of  the 
Court  over  its  attorneys.  We  have  therefore  made  an  order, — 
in  concurrence  I  may  remark,  with  the  Judges  of  the  other 
Courts, — the  substance  of  which  is  that  the  attorney  by  affidavit 
should  disclose  formally  what  he  has  probably  disclosed  in 
effect  in  the  other  Courts.  The  reasons  for  our  decision  are 
more  fully  stated  in  an  opinion  by  one  of  the  justices  of  the 
Court.  The  questions  as  to  a  stay  of  proceedings  and  the  right 
of  the  plaintiffs  to  go  on  with  the  suit,  may  te  considered  here- 
after. 

HOFFMAN,  J.  (after  stating  the  facts  in  the  case  at  length.) — 
1.  The  authorities  cited  are  decisive  of  the  right  of  the  court 
to  call  for  the  residences  and  occupations  of  the  plaintiffs  respec- 


200  ABBOTTS'  PRACTICE  REPORTS. 

The  ninety-nine  Plaintiffs  a.  Vanderbilt. 

lively.  In  Johnson  v.  Birley,  (5  Bwrn,  &  Aid.,  540),  this  was 
done  in  the  case  of  an  assault,  where  numbers  were  present, 
and  the  defendant  could  not  ascertain  on  inquiry,  who  the 
plaintiff  was.  The  court  said  that  the  rule  had  generally  been 
confined  to  actions  of  qui  tarn  and  ejectment,  because  it  is  only 
in  such  cases  that  the  defendant  is  generally  ignorant  of  the 
plaintiff  or  his  person.  Bayley  Justice  said  that  previous  to 
the  statute  of  "Westminster,  a  plaintiff  appeared  in  person, 
unless  he  had  a  special  writ  authorizing  him  to  appear  by 
attorney.  Then  the  pleadings  were  ore  tenus,  and  a  defendant 
had  the  privilege  of  seeing  and  knowing  who  the  plaintiff  was. 
After  stating  some  further  reasons,  he  says : — It  is  necessary, 
in  order  that  both  parties  may  have  a  fair  trial,  that  the 
information  required  by  this  rule  should  be  given.  In  Worten 
v.  Smith,  (6  J.  B.  Moore,  110),  which  was  an  action  on  the 
case  for  a  libel  by  three  plaintiffs,  a  rule  was  made  absolute 
that  the  plaintiff  give  the  particulars  in  writing  of  the  places  of 
residence  and  occupations  of  the  two  other  plaintiffs,  and  in 
the  meantime  all  further  proceedings  to  be  stayed.  It  was 
submitted  that  the  knowledge  was  important  to  enable  the 
defendant  to  justify  or  otherwise  to  shape  his  defence.  See 
also  McRoeman  v.  Patrick  (4  Howard's  Miss.  R.,  533),  and 
West  v.  Houston,  (3  Harring.  15).  The  good  sense  of  such  a 
rule  is  apparent,  wherever  the  justice  of  the  case  seems  to 
require  its  application. 

It  is  here  sworn  to  that  several  of  these  nominal  plaintiffs 
are  dead,  and  facts  are  stated  to  show  that  some  others  are 
probably  so.  Again,  it  is  not  improbable  that  Mead  &  Co.,  of 
St.  Juan  del  Sur,  hold  the  whole  or  most  of  these  tickets  as 
beneficial  owners  or  assignees.  .  See  affidavit  of  Thompson  and 
Cross.  The  defendants  are  entitled  to  the  names  of  the  plain- 
tiffs and  their  residences  to  prove  this  fact  by  their  own  evi- 
dence if  necessary,  and  to  show  that  Mead  &  Co.  have  the 
right  to  sue.  Again,  he  has  a  right  to  such  information  in 
order  to  enable  him  to  obtain  security  for  costs  from  non- 
residents. And  as  it  appears  that  many  of  them  were  for- 
warded by  Mead  &  Co.  from  St.  Juan  del  Sur  to  San  Fran- 
cisco by  sailing  vessels  in  1852,  the  presumption  is  strong  that 
some  of  them  are  non-residents.  The  difficulty  of  complying 


NEW-YORK.  201 


The  ninety-nine  Plaintiffs  a.  Vanderbilt. 


with  such  a  requisition  in  this  case,  forms  no  objection  to  its 
being  made.  We  consider  that  an  attorney  who  sues  in  a 
court,  is  bound  to  know  the  place  of  residence  and  occupation 
of  his  client,  that  it  may  be  disclosed  if  the  rights  of  the 
defendant  require  it.  This  part  of  the  application  must  be 
granted. 

2.  The  next  branch  of  the  motion  relates  to  the  exhibition 
by  the  attorney  of  his  authority  to  sue  in  the  names  of  these 
numerous  plaintiffs.  It  is  true  that  in  general  the  authority  of 
an  attorney  is  to  be  presumed  from  his  appearing  on  the  record. 
And  the  statute  has  only  expressly  provided  for  the  production 
of  his  power  in  cases  of  ejectment.  (2  Rev.  Stats.  4  ed. 
567,  §  12). 

But  the  present  case  is  very  peculiar.  Upon  the  affidavit 
produced  by  the  defendant,  it  is  made  out  that  certainly  many 
of  these  passage  tickets  have  been  transferred  to  Mead  &  Co., 
and  are,  perhaps,  owned  by  them.  The  right  of  action  to  all 
such  is,  it  may  be  assumed,  vested  in  that  firm.  A  single  suit, 
then,  in  their  name,  for  all  such  tickets  would  be  the  proper 
and  the  only  action  which  could  be  sustained,  to  such  extent 
as  any  right  of  action  was  assignable.  It  appears  by  the  affi- 
davits produced  by  the  plaintiffs'  attorney,  since  the  argument 
of  this  motion,  and  agreed  to  be  used  by  us,  that  a  power  or 
powers  of  attorney,  were  executed  by  a  number  of  the  plain- 
tiffs to  Mead  &  Co.,  authorizing  them  to  employ  attorneys  and 
counsel  for  the  purpose  of  enforcing  their  claims.  It  is  alleged 
that  this  power  has  been  burnt.  It  is  not  alleged  that  a  draft 
or  copy  is  not  in  existence,  nor  that  the  parties  cannot  give  a 
satisfactory  statement  of  its  general  contents.  If  the  draft  or 
copy  was  directed  to  the  attorney,  no  doubt  the  court  would 
ask  for  its  production.  The  case  cannot  be  varied,  where  it  is 
an  authority  to  another,  to  employ  the  attorney.  In  various 
cases  the  undoubted  right  of  the  court  to  call  for  an  exhibition 
of  the  power  of  an  attorney  is  declared.  In  a  few  it  is  consid- 
ered as  an  absolute  unqualified  right  of  the  defendant.  Thus, 
in  Clark  v.  Holliday,  (9  Miss.  7?.,  711),  it  was  held  that  the 
court  would  inquire,  whenever  requested,  into  the  authority  of 
an  attorney  to  appear.  The  court  in  Tennessee  recognized  the 
same  rule  in  Gillespie's  case,  (3  Yerger,  325).  In  McAlexan- 


202  ABBOTTS'  PRACTICE  EEPOETS. 

The  ninety-nine  Plaintiffs  a.  Vanderbilt. 

der  v.  Wright,  (3  Monroe's  R.,  194),  it  was  so  far  qualified  as 
to  impose  upon  the  defendant  the  task  of  showing  that  his 
rights  might  be  jeoparded,  unless  it  was  observed.  The  gen- 
eral power  was  recognized  in  Allen  v.  Green,  {Bailey 's  7?.,  S. 
Car.,  448).  See  also  Cantwell  v.  Merrifee,  (2  Pike  R'.,  355), 
and  West  v.  Houston,  (3  Hwrri/ng.,  15).  In  5  Halstead,  251, 
it  was  held  that  it  was  not  the  proper  subject  of  a  plea  that 
the  attorney  had  no  authority  to  prosecute  the  suit.  The 
proper  mode  was  by  motion  to  the  court  to  stay  proceedings. 
It  seems  to  be  the  settled  law  in  England  that  if  a  plaintiff 
questions  the  attorney's  power  to  sue  for  him,  and  makes  an 
affidavit  denying  it,  nothing  but  a  written  authority  will  suf- 
fice. (Maries  v.  Maries,  23  Eng.  LOAD  &  Eq.  R.  22  ;  Allen  v. 
Bone,  4  jBeavan,  493).  We  consider  the  circumstances  of  this 
case  as  calling  upon  the  court  to  exercise  its  power  to  require 
the  best  and  most  perfect  exhibition  of  the  power  under  which 
he  acts,  that  can  be  given,  the  original  authority  under  which 
his  authority  is  derived,  being  lost. 

The  order  will  be  as  follows : 

Upon  reading  and  filing  the  order  to  show  cause  herein,  and 
the  affidavits  of  the  defendant  and  William  K.  Thorne  and 
others,  submitted  on  the  part  of  the  defendant,  and  also  the 
affidavits  of  William  Silliman,  Esq.  and  William  H.  Mead, 
submitted  on  the  part  of 'the  plaintiffs  respectively,  and  also 
upon  reading  the  several  complaints  of  the  said  respective 
plaintiffs,  and  on  hearing  of  counsel  in  behalf  of  the  parties 
respectively — it  is,  on  motion  of  Horace  F.  Clarke,  Esq.,  of 
counsel  for  defendant,  ordered, 

That  the  attorney  for  the  plaintiff,  in  the  several  above  enti- 
tled causes,  furnish  in  writing  and  verified  by  oath,  to  the 
attorney  for  the  defendant,  the  names  and  present  places  of 
residences  of  the  said  plaintiffs  respectively,  in  the  manner  and 
to  the  extent  specified  in  the  order  to  show  cause ;  that  is  to 
say,  with  the  Christian  names  of  the  plaintiffs  in  each  of  said 
causes  in  which  such  Christian  name  is  not  stated  in  the  com- 
plaints respectively,  and  specifying  the  State,  county,  town- 
and  village  where  each  of  the  plaintiffs  respectively  resides, 
and  if  they,  or  any  or  either  of  them,  reside  in  a  city,  then 


NEW-YOKE.  203 


Drake  a.  Cockroft. 


giving  the  street  and  number  of  such  residence,  and  also  speci- 
fying the  occupation  of  the  plaintiffs  respectively. 

And  it  is  further  ordered,  that  the  said  attorney  for  the 
plaintiffs  in  the  said  above  entitled  suits  do  also  deliver  <o  the 
attorney  for  the  defendant  a  sworn  copy  of  the  power  of  attor- 
ney under  or  in  pursuance  of  which  the  said  suits  are  alleged 
to  be  instituted,  mentioned  in  the  said  affidavit  of  William  H. 
Mead  so  read  and  filed  on  the  behalf  of  the  said  plaintiffs  upon 
this  motion,  and  therein  stated  to  have  been  executed  by  the 
said  several  plaintiffs  to  the  said  Mead,  if  the  draft  or  any  copy 
of  the  said  power  of  attorney  or  written  authority  is  in  exist- 
ence, and  if  not,  then  that  he  deliver  a  statement,  verified  by 
oath,  of  the  substantial  contents,  extent,  purport  and  effect  of 
the  same,  and  of  the  powers  conferred  therein,  and  the  consi- 
deration expressed  therein  or  upon  which  the  same  purported 
to  be  given,  the  interest,  if  any,  thereby  given  or  purported  to 
be  given  to  the  said  Mead,  or  to  Mead  &  Co.,  and  for  whose 
use  and  benefit  the  suits  alleged  to  have  been  thereby  author- 
ized were  to  be  prosecuted,  and  at  whose  risk,  cost  and  expense, 
so  far  as  such  particulars  or  any  or  either  of  them  were  con- 
tained in  such  power  of  attorney  or  written  authority,  and  as 
nearly  in  the  words  of  the  said  power  as  he  may  be  able  to 
furnish  the  same,  or  as  may  be  practicable. 

And  all  proceedings  in  the  said  several  suits  are  hereby 
stayed  until  the  further  order  of  this  court,  with  leave  to  either 
party  to  apply  to  the  court  for  further  or  other  relief,  as  he 
may  be  advised. 


DRAKE  a.  COCKROFT. 

New  York  Common  Pleas  ;  General  Term,  January,  1855. 
IRRELEVANT  DEFENCES. — COUNTER-CLAIM. 

An  answer  which,  without  denying  any  fact  stated  in  the  complaint,  merely  says 
that,  "  the  defendant  denies  that  the  plaintiff  is  entitled  to  the  money  demanded," 
will  be  struck  out  on  motion. 

In  an  action  by  a  landlord  to  recover  rent,  the  tenant  cannot  set  up  as  a  counter- 
claim a  mere  trespass  upon  the  demised  premises,  and  destruction  of  personal 
property,  committed  by  the  landlord. 

Quere. — Whether  in  actions  at  law  the  Code  has  extended  the  doctrine  of  recoup- 
ment to  any  cases  to  which  it  did  not  previously  apply. 


204  ABBOTTS'  PRACTICE  REPORTS. 

Drake  a.  Cockroft. 

Appeal  from  an  order  at  special  term,  striking  out  parts  of 
an  answer. 

H.  gcovell,  for  appellant. 
W.  Lowerre^  for  respondent. 

"WOODRUFF,  J. — The  complaint  herein  avers  that  the  plaintiff 
on,  &c.,  let  the  defendant,  and  the  defendant  hired  and  took 
from  the  plaintiff  certain  premises  for  the  term  of  one  year, 
from  the  first  of  May  then  next  at  the  yearly  rent  of  $925, 
payable  as  follows :  $308.33  on  the  first  day  of  August,  1853  ; 
$308.33  on  the  first  of  November,  1853,  and  the  balance 
$308.34  on  the  first  day  of  February,  1854. 

After  setting  forth  other  provisions  of  the  lease  not  material 
to  this  appeal,  the  complaint  further  "avers  that  the  defendant 
promised  to  make  punctual  payment  of  the  said  rent  in  the 
manner  above  mentioned,  and  that  the  defendant  entered  into 
possession  of  the  demised  premises  under  and  by  virtue  of  the 
said  hiring,  and  continued  in  the  possession,  &c.  until  after  the 
first  day  of  February,  1854.  That  on  the  first  day  of  August, 
1853,  the  said  sum  of  $308.33  became  due  and  payable  accord- 
ing to  the  tenor  of  the  said  letting  and  hiring,  and  that  the 
sum  of  $8.33  thereof  is  now  due  and  owing.  That  on  the  first 
of  November,.  1853,  the  other  sum  of  $308.33  became  due  and 
payable  according  to  the  tenor,  &c.,  and  that  the  sum  of  $8.33 
is  now  due  and  owing,  and  the  said  balance  of  $308.34  became 
due  and  payable  on  the  first  day  of  February,  1854,  and  the 
whole  thereof  is  now  due  and  payable.  Whereupon  the  plain- 
tiff' demands  judgment  for  $325,  and  interest  and  costs.  To 
which  complaint  the  defendant  by  answer  sets  up  or  attempts 
to  set  iip  three  distinct  defences. 

For  a  first  and  distinct  defence,  the  defendant  answers  that 
he  "  denies  that  the  said  plaintiff  is  entitled  to  the  sum  of 
money  demanded  in  this  action  or  any  part  thereof." 

Reading  this  supposed  "  defence"  in  connection  with  the 
legal  principle  that  "  every  material  allegation  in  the  com- 
plaint which  is  not  Controverted  by  the  answer,  shall  be  taken 
as  true  for  the  purpose  of  the  action,"  this  so  called  defence 
amounts  to  this  ;  "  although  I  hired  the  plaintiff's  premises  for 


NEW-YOKE.  205 


Drake  a.  Cockroft. 


the  period  stated,  and  agreed  to  pay  the  rent  specified,  and 
occupied  the  premises  during  the  term,  and  the  rent  became 
due  and  payable  according  to  the  tenor  of  the  hiring,  and  is 
now  due  and  owing,  still  the  plaintiff  is  not  entitled  to  such 
rent."  Or  in  another  form,  "  although  all  the  facts  alleged  by 
the  plaintiff  are  true,  still  he  is  not  entitled  to  recover." 

I  fully  concur  in  the  opinion  of  the  first  judge  at  special 
term,  that  this  is  no  defence  at  all.  If  the  facts  stated  by  the 
plaintiff  are  true,  the  plaintiff  is  entitled  to  the  sum  of  money 
demanded,  and  this  so  called  first  defence  is  a  mere  legal 
falsehood,  unless  other  facts  exist  which  are  not  stated. 

I  need  not  state  the  elementary  rule  of  pleading,  that  a  plea 
or  answer  which  does  not  deny  the  facts  alleged  by  the  plain- 
tiff must  state  facts,  which  if  proved,  destroy  the  legal  infe- 
rence that  the  plaintiff  is  entitled  to  recover.  If  the  allega- 
tions of  the  plaintiff  are  sufficient  in  law  to  entitle  him  to 
recover,  the  defendant  cannot  dispute  the  right  of  recovery 
while  he  admits  the  facts  stated,  unless  he  avers  new  facts 
which  defeat  their  otherwise  legal  operation. 

The  defendant's  counsel  on  the  argument  of  the  appeal, 
insists  that  a  denial  of  the  plaintiff's  right  to  recover,  or  a  state- 
ment that  the  plaintiff  is  not  entitled  to  the  money,  is  a  state- 
ment of  a  fact.  In  this  I  apprehend  he  overlooks  the  distinc- 
tion which  often  exists  between  the  statement  of  a  truth  and 
an  allegation  of  a  fact.  Indeed  the  terms  fact  and  truth  are 
often  used  in  common  parlance  as  synonymous ;  but  as 
employed  in  reference  to  pleading,  they  are  widely  different. 
A  fact,  in  pleading,  is  a  circumstance,  act,  event  or  incident ; 
a  truth,  is  the  legal  principle  which  declares  or  governs  the 
facts  and  their  operation  and  effect.* 

Admitting  the  facts  stated  in  a  complaint,  the  truth  may  be 
that  the  plaintiff  is  not  entitled  upon  the  face  of  his  complaint, 
to  what  he  claims.  The  mode  in  which  a  defendant  sets  up 
that  truth  for  his  protection,  is  a  demurrer. 

So  also,  admitting  the  facts  stated  in  a  complaint,  the  truth 
may  still  be  that  by  reason  of  the  existence  of  facts  which  are 
not  disclosed .  T>y  the  complaint,  the  plaintiff  is  not-  entitled  to 

*  For  another  view  of  this  distinction,  see  Lawrence  v.  Wright,  2  Duer,  673. 


206  ABBOTTS'  PKACTICE  REPOKTS. 

Drake  a.  Cockroft. 

what  be  claims.  If  a  defendant  wishes  to  urge  this  condition 
of  things,  he  must  do  it  by  averring  the  existence  of  those 
facts. 

It  seemed  to  me  so  obvious  that  this  denial  of  the  plaintiff's 
title  to  recover,  contains  nothing  which  can  be  called  a  state- 
ment of  a  fact,  that  no  language  could  make  it  more  plain  ; 
but  counsel  for  the  appellant  have  deemed  it  doubtful,  and 
pressed  it  upon  our  further  consideration.  The  case  cited  by 
him  (Allen  v.  Patterson,  3  Seld.  476),  does  not  even  tend  to 
sustain  such  an  answer.  An  averment  in  a  complaint  that  the 
defendant  was  indebted  to  the  plaintiff  for  goods  sold  and 
delivered  by  the  plaintiff  to  the  defendant  at  his  request  on  a 
day  named,  and  at  a  place  stated,  and  that  a  sum  named  is 
due  to  the  plaintiff  from  the  defendant  was  held  to  import, 
and  therefore  in  substance  to  be,  an  averment  that  at  the  time 
and  place  stated  the  plaintiff  sold  and  delivered  to  the  defend- 
ant the  goods  referred  to,  and  the  court  in  that  case  distinctly 
recognized  the  duty  of  a  pleader  distinctly  to  aver  or  state 
every  fact  on  which  he  relies  to  support  the  legal  proposition 
upon  which  his  right  to  maintain  or  defend  the  suit,  is 
dependent. 

For  a  second  and  distinct  defence  the  defendant  sets  up 
what  the  pleader,  (as  if  himself  in  some  doubt  by  what  name 
it  can  properly  be  called),  terms  a  claim  to  an  allowance  of 
the  "amount  or  valw''  of  certain  personal  property  "by  way 
of  counter-claim,  recoupment  or  set  off."  And  this  claim  is 
founded  upon  allegations  that  the  defendant  simultaneously 
with  and  as  a  part  and  parcel  of  the  same  hiring  mentioned  in 
the  complaint,  hired  from  the  plaintiff,  and  held,  used  and 
occupied  a  certain  stable  and  lot  of  ground  adjoining  the  pre- 
mises described  therein — and  that  the  plaintiff  during  the 
defendant's  temporary  absence,  broke  open  the  stable  and 
wilfully  took  and  removed  the  personal  property  of  the  defend- 
ant therefrom,  and  the  same  has  been  injured,  destroyed  and 
lost  to  the  defendant.  "What  the  property  consisted  of,  or  how 
much  is  its  value,  is  not  stated. 

If  I  thought  it  doubtful  whether  the  matter  thus  pleaded  as 
a  second  defence  did  or  did  not  constitute  a  valid  counter- 
claim in  this  action,  I  should  not  hesitate  to  say  that  it  ought 


KEW-YOKK.  207 


Drake  a.  Cockroft. 


not  to  have  been  struck  out  on  motion,  and  that  the  plaintiff 
should  have  been  left  to  his  demurrer.  In  this  respect  I  assent 
to  the  argument  urged  by  the  counsel  for  the  appellant  and  to 
the  authorities  cited  by  him  that  questions  of  doubt  ought  not 
to  be  disposed  of  in  this  summary  manner  when  a  demurrer  is 
the  appropriate  mode  of  trying  them.  But  I  can  find  no  rea- 
son for  any  doubt  upon  the  subject.  The  answer  sets  up  a 
mere  trespass  by  the  landlord  by  taking,  injuring  and  destroy- 
ing certain  personal  property  which  was  upon  a  portion  of  the 
demised  premises. 

It  is  not  claimed  by  the  counsel  for  the  appellant  that  such 
a  trespass  could  be  set  up,  before  the  adoption  of  our  Code,  as 
a  defence  to  an  action  by  the  landlord  for  the  rent.  But  it  is 
insisted  that  the  counter-claim  authorized  by  the  Code  includes 
the  damages  sustained  by  the  tenant  from  such  a  trespass. 

The  counter-claims  which  the  Code  authorizes  are  defined : 

1st.  A  cause  of  action  arising  out  of  the  contract  or  transac- 
tion set  forth  in  the  plaintiff's  complaint  as  the  foundation  of 
the  plaintiff's  claim,  or  connected  with  the  sufoect  of  the 
action. 

2d.  In  an  action  arising  on  contract,  any  other  cause  of 
action  arising  also  on  contract,  &c. 

A  trespass  upon  real  or  personal  property  is  not  a  cause  of 
action  arising  on  contract.  The  second  cause  above  cited 
clearly  does  not  authorize  such  a  defence  in  an  action  upon 
contract,  and  the  present  is  an  action  upon  the  contract  of 
hiring. 

Does  the  first  definition  or  explanation  of  the  term  counter- 
claim embrace  the  matter  set  up  in  this  answer  ? 

Obviously  it  does  not,  unless  the  cause  of  action  set  up  in  the 
answer  arises  out  of  the  contract  set  forth  in  the  plaintiff's 
complaint,  or  is  connected  with  the  subject  of  the  plaintiff's 
action. 

The  answer  sets  up  a  trespass  by  the  landlord  upon  the 
demised  premises  and  the  destruction  of  the  defendant's  goods. 
It  does  not  even  claim  damages  for  the  entry  or  for  any  injury 
to*  the  possession,  but  only  for  the  personal  property  destroyed. 
The  contract  set  forth  by  the  plaintiff  is  a  letting  and  hiring 
and  agreement  by  the  defendant  to  pay  the  rent.  The  trespass 


208  ABBOTTS'  PRACTICE  REPORTS. 

Drake  a.  Cockrof>. 

averred  does  not  arise  out  of  any  contract.  The  liability  of 
the  plaintiff  for  the  trespass  does  not  result  from  that  contract, 
nor  is  it  affected  by  it.  As  a  cause  of  action  it  is  wholly  inde- 
pendent of  that  contract,  and  the  liability  therefore  exists  to 
the  same  extent  and  is  neither  less  nor  greater  than  if  the  tres- 
pass had  been  committed  upon  any  other  premises  in  the  occu- 
pation of  the  defendant.  The  landlord  is  no  more  liable  for 
the  trespass  than  for  the  like  trespass  committed  elsewhere. 

Nor  is  the  trespass  connected  with  the  subject  of  the  action. 
Here  the  subject  of  the  action  is  rent  or  money  due  upon  the 
contract  of  hiring — the  compensation  for  the  use  and  occupa- 
tion. The  use  and  occupation  have  not  been  interfered  with. 
They  have  continued  without  interruption. '  An  interference 
with  the  possession,  an  eviction  total  or  partial,  an  unlawful 
'  injury  to  the  premises  in  violation  of  the  agreement  of  letting, 
would  have  given  the  defendant  a  claim  for  damages  which 
-  ,  upon  a  liberal  construction  of  the  language  of  the  Code  might 
have  been  connected  with  the  subject  of  the  action  so  as  to 
constitute  a^counter-claim. .  But  a  mere  trespass  is,  in  my  opin- 
ion, no  more  connected  with  the  subject  of  an  action  brought 
for  the  rent  than  an  assault  and  battery  of  the  tenant  by  the 
landlord  would  be. 

I  can  find  no  more  ground  for  saying  that  such  a  trespass 
can  be  set  up  as  a  defence  to  an  action  for.  rent  now  than  be- 
fore the  Code  was  enacted.  The  provisions  of  the  Code  above 
referred  to  were  designed  to  affirm  the  right  of  a  defendant  to 
recover  his  damages  in  those  cases  in  which  a  recoupment  was 
proper  before  the  Code  was  enacted.  (See  Reab  v.  McAllister, 
8  Wend.,  109,  and  Batterman  v.  Pierce,  3  Hill,  191). 

If  the  Code  extends  the  right  to  any  other  cases  not  within 
the  law  of  set-off  (which  I  doubt),  they  are  not  such  as  is  exhi- 
bited by  the  answer  in  question. 

In  my  opinion  the  order  striking  out  what  are  termed  in  the 
answer  the  first  and  second  defences,  should  be  affirmed. 


NEW-YORK.  209 


Gregory  a.  Trainer. 


GREGORY  a.  TRAINER. 
New  York  Common  Pleas ;  General  Term,  January,  1855. 

«. 

PLEADING. — EFFECT  OF  PLEA  OF  SET-OFF. 

The  rule  of  the  old  system  of  pleading,  that  a  special  plea  admits  the  matters  stated 

in  the  declaration,  is  applicable  to  pleadings  under  the  Code. 
Where  the  defendant,  in  a  justice's  court,  did  not  deny  the  plaintiff's  claim,  but 

merely  alleged  a  set-off  which  was  not  proven  on  the  trial ; — held,  that  judgment 

should  have  been  rendered  for  the  plaintiff. 

Appeal  from  a  judgment  of  the  Sixth  District  Court. 

The  plaintiff  claimed  $13  damages,  and  the  defendant  pleaded 
a  set-off.  Neither  party  offered  any  testimony,  and  the  justice 
rendered  judgment  for  the  defendant.  The  plaintiff  appealed. 

J.  D.  Sherwood,  for  appellant,  cited  Code  §  53 — §  64r,  espe- 
cially subd.  1  to  8  and  15,  §168,  Young  v.  Moore,  2  C.  JR., 
143  ;  De  Courcy  v.  Spalding,  3  C.  E.,  16. 

J.  Molony,  for  respondent.  The  plaintiff  must  prove  some- 
thing before  the  defendant  is  obliged  to  enter  into  any  proofs 
at  all.  If  he  does  not  put  in  some  proof  he  is  clearly  out  of 
court. 

INGKAHAM,  F.  J. — The  complaint  is  this  case  was  for  damages 
to  the  plaintiff's  property,  amounting  to  $13. 

The  defendant's  answer  was  a  set-off,  but  what  the  set-off 
was,  or  what  the  amount  of  it  was,  does  not  appear. 

Neither  party  offered  any  testimony,  and  the  justice  non- 
suited the  plaintiff. 

Under  the  former  system  of  pleading,  a  special  plea  always 
admitted  the  matters  contained  in  the  declaration,  and  the  rule 
is  still  applicable  to  pleadings  under  the  Code. 

The  plaintiff  claimed  to  recover  for  damages  to  his  property, 
which  claim  was  not  denied  by  the  defendant,  but  he  relied  in 
his  answer  on  a  set-off.  The  effect  of  these  pleadings  was  to 
admit  the  plaintiff's  claim,  and  leave  to  the  defendant  the 

14 


210  ABBOTTS'  PRACTICE  REPORTS. 

Stewart's  Case. 

proof  of  his  set-off.  For  want  of  such  proof,  the  justice  should 
have  rendered  judgment  against  the  defendant  for  $13. 

The  judgment  rendered  in  this  case  by  the  justice  cannot  be 
sustained. 

Judgment  reversed,  and  judgment  ordered  for  plaintiff  for 
$13  and  costs. 


STEWART'S   CASE. 
New-York  Common  Pleas ;  In  Chambers,  January,  1855. 

COMMITMENT  FOE   VAGRANCY. — RECORD,   HOW  FILED. — HABEAS 

CORPUS. 

Proceedings  prior  to  a  commitment  for  vagrancy  cannot  be  reviewed  on  Habeas  Cor- 
pus, if  that  commitment  is  regular,  and  the  record  of  conviction  is  properly  made 
and  filed. 

Where  the  record  of  conviction  should  be  filed. 

Habeas  Corpus  directed  to  the  keeper  of  the  penitentiary, 
directing  him  to  bring  the  body  of  Sarah  Stewart  before  the 
Judge. 

The  return  showed  that  the  prisoner  was  detained  by  virtue 
of  a  commitment  by  Justice  Connelly,  on  conviction  of  being 
a  prostitute,  and  therefore  a  vagrant. 

It  appeared  on  the  hearing  by  a  certificate  of  the  county 
clerk,  that  no  record  of  conviction  had  been  filed  with  that 
officer,  and  it  also  appeared  that  the  record  of  conviction  had 
been  filed  with  the  clerk  of  the  sessions. 

E.  Blankman,  for  the  petitioner,  applied  for  the  discharge 
of  the  prisoner,  upon  the  ground  that  the  statute  defining  who 
were  vagrants,  (2  It.  S.  ±ih  ed.,  34),  did  not  include  prostitutes, 
but  they  were  disorderly  persons,  under  the  provisions  of  the 
act,  (2  JR.  /S.,  kth  ed.,  53),  and  in  such  cases,  that  the  record  of 
conviction  could  only  be  filed  wit*h  the  county  clerk. 

INGRAHAM,  F.  J. — Sarah  Stewart  is  brought  before  me  on 
habeas  corpus,  and  is  alleged  to  be  unlawfully  detained  in  the 
penitentiary.  The  return  shows  that  she  was  committed  as  a 


NBW-YOEK.  211 


Stewart's  Case. 


vagrant  by  Justice  Connelly  on  the  16th  January  instant,  for 
the  period  of  three  months,  he  having  tried  her  upon  a  charge 
made  against  her,  and  convicted  her  of  being  a  vagrant,  on 
competent  testimony  of  Daniel  Carpenter,  captain  of  fifth 
ward  police,  and  that  he  had  made  and  filed  the  record  of 
conviction  in  the  office  of  the  clerk  of  the  Court  of  Ses- 
sions. 

Under  this  proceeding,  if  the  commitment  is  regular  on  its 
face  and  the  record  of  conviction  is  properly  made  and  filed,  I 
cannot  review  the  decision  of  the  magistrate.  That  can  only 
be  done  by  the  Supreme  Court,  on  certiorari. 

The  certificate  of  the  county  clerk  is  furnished  that  no 
record  of  conviction  was  filed  there,  and  a  copy  of  the  record 
as  filed  with  the  clerk  of  the  Sessions  is  also  produced. 

It  is  contended  by  the  petitioner's  counsel  that  the  record  of 
conviction  should  have  been  filed  with  the  county  clerk,  and 
not  with  the  clerk  of  Sessions ;  that  the  charge  against  the 
prisoner  of  being  a  prostitute,  as  stated  in  the  commitment, 
did  not  warrant  a  conviction  of  vagrancy,  but  of  being  a  disor- 
derly person ;  and  that  in  such  cases  the  statute  requires  the 
record  to  be  filed  with  the  county  clerk.  There  is  some  confu- 
sion in  the  different  statutes,  which  without  careful  examina- 
tion, may  lead  to  error. 

By  the  statute  as  to  vagrants,  (2  Rev.  Stats.,  4  ed.  34),  cer- 
tain persons  are  declared  to  be  vagrants,  and  upon  conviction 
loy  a  magistrate,  may  be  sentenced  to  the  penitentiary,  and  the 
record  of  conviction  is  to  be  filed  in  the  office  of  the  clerk  of 
the  county.  But  in  the  enumeration  of  offences  which  may  be 
tried  under  this  chapter,  the  one  of  which  this  person  is  con- 
victed, (being  a  prostitute)  is  not  enumerated. 

By  the  statute  as  to  disorderly  persons,  (2  Rev.  Stats.,  4  ed., 
53),  a  similar  provision  is  made  as  to  other  offences,  and  the 
record  of  conviction  is  directed  to  be  filed  in  the  office  of  the 
clerk  of  the  county.  Under  this  class  of  offences,  is  enumer- 
ated that  of  being  a  common  prostitute. 

In  1853  a  statute  was  passed  prescribing  the  form  of  the 
record,  and  directing  that  in  all  cases  of  conviction  for 
vagrancy,  the  record  of  conviction  shall  be  filed  with  the  clerk 


212  ABBOTTS'  PRACTICE  REPORTS. 

Stewart's  Case. 

of  the  Sessions.     The  record  in  this  case  is  substantially  that 
prescribed  by  this  statute.     (Laws  0/"1853,  353). 

It  is  urged  that  this  statute  does  not  apply  to  the  chapter  of 
the  Revised  Statutes  relative  to  disorderly  persons,  and  there- 
fore the  record  of  conviction  should  in  such  cases  still  be  filed 
with  the  county  clerk.  This  is  so  in  regard  to  all  offences 
which  come  under  this  description.  But  there  is  another 
statute  which  has  been  often  overlooked,  but  which  relieves 
this  case  from  any  difficulty  upon  this  point. 

By  the  statute  relative  to  the  powers  of  the  common  coun- 
cil, &c.j  passed  January,  1833,  (Laws  of  1833,  9  ch.  11),, 
habitual  drunkards,  common  prostitutes  and  others  are  declared 
to  be  deemed  vagrants,  and  if  the  magistrate,  on  complaint 
before  him,  is  satisfied  by  competent  testimony  that  any  per- 
son is  a  vagrant  within  the  description  therein  stated,  he  is 
directed  to  make  up  and  sign  a  record  of  conviction,  which 
shall  be  filed  in  the  office  of  the  clerk  of  the  Court  of  Sessions, 
and  he  shall  by  warrant  commit  such  vagrant — if  the  offender 
be  an  improper  person  to  goto  the  almshouse — to  the  peniten- 
tiary, for  any  time  not  exceeding  six  months. 

The  proceedings  in  this  case  are,  therefore,  regular  and  in 
accordance  with  the  provisions  of  the  last  recited  statute,  with- 
out reference  to  the  act  of  1853.  And  as  by  this  act  the 
offence  charged  is  declared  to  be  that  of  vagrancy,  the  provi- 
sions of  the  act  of  1853  are  also  applicable  to  this  class  of 
cases,  and  the  prescribed  form  of  the  record  of  conviction  by 
that  act  is  proper  and  sufficient  for  all  offences  embraced  in  the 
12th  section  of  the  act  of  1833.  The  record  of  conviction  and 
the  commitment  are,  therefore,  regular  and  in  compliance  with 
the  statute. 

If  the  allegations  contained  in  the  petition  are  true,  injustice 
may  have  been  done  to  the  prisoner.  It  is  there  alleged  that 
she  was  prohibited  from  producing  witnesses  on  her  own 
behalf,  and  from  cross-examining  witnesses  produced  against 
her,  and  that  she  is  innocent  of  the  charge  made  against  her ; 
but  the  guilt  or  innocence  of  the  prisoner  cannot  be  inquired 
into  upon  habeas  corpus  after  conviction.  If  there  is  any 
remedy — and  that  there  should  be  one  no  one  can  doubt — it  is 


NEW-YQBK.  213 


La  Chaise  a.  Lord. 


by  the  Supreme  Court  on  certiorari.  I  have  no  power  in  this 
proceeding  to  review  the  correctness  of  the  decision  of  the 
magistrate. 

The  prisoner  must  be  remanded  and  the  writ  discharged.* 


LA  CHAISE  a.  LORD. 
New  York  Common  Pleas  ;  Special  Term,  January,  1855. 

SPECIAL  PARTNERSHIP. — RIGHTS  OF  CREDITORS. — APPOINTMENT 
OF  RECEIVER. 

Where  an  action  was  brought  on  behalf  of  one  firm  out  of  a  large  number  of  credi- 
tors of  an  insolvent  firm,  and  was  brought  not  only  against  the  general  partners 
of  the  firm,  but  also  against  a  special  partner  who  denied  his  indebtedness  :• — 
Held,  that  an  application  for  an  injunction  and  the  appointment  of  a  receiver 
must  be  denied. 

To  warrant  the  granting  of  such  an  application  ; — 

It  should  be  made  in  behalf  of  all  creditors  of  the  insolvent  firm  who  will  unite 
therein ; — 

And  all  the  defendants  sought  to  be  made  liable  as  partners,  should  <idmit  the 
indebtedness. 

Application  for  an  injunction,  and  appointment  of  receiver. 

This  action  was  brought  by  La  Chaise  and  Fanche",  against 
Lord,  Brown  and  Marks.  The  facts  out  of  which  the  action 
.  arose  appear  in  the  opinion. 

(7.  Bainbridge  Smith,  for  plaintiffs. 

D.  Lord  and  John  B.  Stevens,  for  defendants  Lord  and 
Brown. 

Benedict,  Boardman  and  Huntington,  for  defendant  Marks. 

INGRAHAM,  F.  J. — The  plaintiffs,  being  creditors  of  Lord  and 
Brown,  move  for  an  injunction  against  the  partnership  pro- 
perty, and  a  receiver.  The  complaint  shows  the  indebtedness 
of  the  firm  of  Lord  &  Brown  to  the  plaintiffs,  upon  a  note  of 
$1,073  50  ;  that  Lord  &  Brown  formed  a  limited  partnership 
in  December,  1850,  to  continue  five  years,  and  that  the  other 
defendant,  Marks,  was  the  special  partner,  having  advanced 

*  The  prisoner  was  afterwards  discharged  by  the  Supreme  Court  on  certiorari — 
for  defect  in  the  evidence  before  the  justice. 


214  ABBOTTS'  PRACTICE  REPORTS. 

La  Chaise  a.  Lord. 

$20,000  thereto,  that  during  the  existence  of  the  partnership, 
Marks  withdrew  from  the  funds  of  the  firm  $18.339  80,  and 
about  the  1st  of  July,  1854,  received  from  the  firm  their  notea 
for  $17,100 ;  that  at  about  that  time  the  firm  served  upon  their 
creditors  a  notice  of  the  dissolution  of  the  limited  partnership ; 
that  at  the  time  Marks  received  such  sums  of  money  from  the 
firm  they  were  insolvent,  and  that  such  moneys  were  trans- 
ferred in  contemplation  of  insolvency ;  that  the  firm  of  Lord 
&  Brown  is  now  insolvent  and  wholly  unable  to  pay  their 
debts,  and  have  now  in  possession  several  thousand  dollars  of 
assets  of  said  partnership,  out  of  which  they  are  paying  debts, 
and  giving  preferences  over  the  debt  due  to  the  plaintiffs. 
The  defendants,  Lord  &  Brown,  do  not  deny  the  indebtedness 
to  the  plaintiffs.  They  admit  the  insolvency  of  the  firm,  and 
that  they  have  in  their  possession  some  of  the  assets  of  the 
firm.  They  explain  the  moneys  paid  to  Marks  to  have  been, 
dividends  of  profits,  which  they  allege  to  have  been  made  in 
good  faith,  and  after  allowance  for  all  losses  sustained  at  the 
times  of  such  dividends  for  the  years  1851,  '52  and  '53  ;  and 
aver  that  such  dividends  were  made  from  the  net  profits. 
They  also  aver  that  at  the  time  of  the  dissolution  in  July, 
1854,  they  believed  the  firm  to  have  been  solvent.  That  on 
such  dissolution  they  bought  from  defendant,  Marks,  his 
interest  in  the  assets  of  the  firm  as  special  partner,  for  which 
the  notes  of  Lord  &  Brown  were  given,  payable  after  all  the 
liabilities  of  the  special  partnership  should  have  been  matured. 
That  Lord  &  Brown  as  general  partners,  bought  the  assets  of 
the  firm  of  Lord  &  Brown  (the  limited  partnership)  which 
were  duly  transferred  to  them,  and  they  incurred  a  liability 
for  said  purchase  of  $140,000,  of  which  they  have  since  paid 
$75,000.  That  Lord  &  Brown  thereupon  formed  a  new 
general  copartnership  in  which  Marks  had  no  interest.  That 
such  new  firm  failed  in  November,  1854,  and  that  there  is 
now  due  to  the  creditors  of  the  limited  partnership  $65,000, 
and  of  the  general  partnership  $115,000.  They  also  allege 
the  pendency  of  another  action  in  this  court  by  Lottimer  and 
others  in  behalf  of  all  the  creditors  of  such  limited  partnership,, 
praying  for  an  injunction  and  receiver,  prior  to  the  com- 
mencement of  this  action. 


NEW-YOKE.  215 


La  Chaise  a.  Lord. 


If  this  action  had  been  by  the  plaintiffs  as  creditors  of  Lord 
&  Brown,  on  behalf -of  all  the  creditors  of  the  limited  partner- 
ship, and  Marks  had  not  been  sought  to  be  charged  as  a 
general  partner,  I  think  the  facts  appearing  before  me  would 
have  been  sufficient  to  warrant  the  granting  of  this  motion. 
The  firm  is  admitted  now  to  be  insolvent,  owing  about  $65,000, 
and  by  a  proceeding  to  which  but  little  value  can  be  attached 
so  far  as    the    claims  of    creditors   are   concerned,   all    the 
assets  of  the  firm  of  Lord  &  Brown,  the  limited  partnership, 
have  been  sold  to  Lord  &  Brown,  the  general  partners,  and 
as  appears  from  the  evidence,  in  consideration  of  their  agree- 
ing to  pay  all  the  liabilities  of  the  limited  partnership,  amount- 
ing to  $140,000.      Had  such  liabilities   been   discharged   at 
maturity,  none  of  the  creditors  would  have  had  any  cause  of 
complaint  against  the  arrangement,  but  when  debts  to  the 
amount  of  $65,000  are  left  unpaid,  the  creditors  may  well 
claim  as  void  a  sale  of  the  whole  assets  of  the  firm  by  the 
partners,  to   themselves,  when  they  are   told  they  have  no 
claim  upon  such  assets,  and  must  rely  upon  the  individual 
liability  of  Lord  &  Brown,  the  members  of  the  general  part- 
nership, to  whom  they  claim  such  assets  belong.     No  such 
arrangement  can  be  sustained  to  deprive  the  creditors  of  the 
limited  partnership  of  their  right  to  insist  that  the  assets  of 
that  firm  shall  be  applied  to  the  payment  of  its  debts,  and 
although  the  defendants  may  have  gone  on  and  paid,  with 
borrowed  money,  some  of  their  liabilities,  there  is  nothing  in 
that  fact  to  justify  them  in  withholding  from  such  creditors 
the  assets  still  remaining  in  their  hands,  and  which  under  any 
circumstances  should  be  applied  in  discharge  of  the  liabilities 
of  the  limited  partnership.     That  such  a  transfer  between  the 
same  parties  can  be  sanctioned  as  depriving  creditors  of  their 
right  to  follow  the  assets  of  the  firm  for  the  discharge  of  its 
debts,  seems  to  me  inconsistent  with  every  principle  of  justice 
or  equity.     It  may  be,  that  upon  a  dissolution  of  a  firm,  one 
partner  may  sell  to  the  other  partner  all  his  interest  in  the 
assets  of  the  firm,  and  that  if  such  transaction  is  fona  fide, 
and  for  the  purpose  of  winding  up  the  affairs  of  the  firm,  a 
creditor  cannot  take  such  property  from  liens  obtained  against 
it    by  the   creditors   of  the   partner  making  the    purchase. 


216  ABBOTTS'  PIIACTICE  REPORTS. 


La  Chaise  a  Lord. 


Ketchura  v.  Durkee,  1  Sari.  Ch.  It.  480).  But  this  doctrine 
cannot  be  extended  to  such  a  case  AS  the  present  one,  and  I 
doubt  whether  it  can  be  in  any  case  of  limited  partnership. 

The  right  to  grant  such  motion  was  settled  in  the  case  of 
Inness  v.  Lansing,  (7  Paige,  584),  and  has  been  since  followed 
by  the  supreme  court,  in  Whitewright  v.  Stimpson,  2  Barl>. 
S.  O.  It.  379,  and  the  rule  adopted  in  those  cases  as  to  limited 
partnerships  was  extended  by  Judge  Edmonds  to  a  general 
partnership,  in  Dillon  v.  Horn,  (5  How.  P.  R.  R.,  35). 
Whether  the  decision  in  the  latter  case  can  be  sustained  it  is 
not  necessary  now  to  decide.  And  when  it  appears  that  a 
disposition  was  made,  or  to  be  made,  of  the  assets,  in  giving 
a  preference  to  one  creditor  over  another  in  view  of  insol- 
vency, the  provisions  of  the  219th  section  of  the  Code  are 
comprehensive  enough  to  warrant  such  a  proceeding. 

In  the  cases,  however,  to  which  I  have  referred,  the  action 
was  commenced  not  for  the  benefit  of  the  plaintiffs  solely,  but 
of  all  the  creditors  of  the  insolvent  firm.  The  appointment  of 
a  receiver  in  those  cases  would  have  secured  the  partnership 
funds  and  assets  for  the  joint  benefit  of  all,  and  upon  a  distri- 
bution of  such  assets,  the  creditors  would  have  been  entitled 
equally  to  share  in  the  proceeds  thereof.  There  is  a  manifest 
propriety  in  requiring  such  a  form  of  action  before  the  property 
of  the  firm  should  thus  be  placed  in  the  hands  of  the  receiver. 
There  is  no  equity  in  taking  from  a  firm  the  whole  of  their  prop- 
erty to  pay  or  secure  one  individual  creditor  to  the  exclusion  of 
others.  The  impropriety  of  thus  placing  in  the  hands  of  a  receiver 
the  whole  of  the  assets  of  the  firm  to  pay  a  claim  of  $1000,  and 
thereby  depriving  other  creditors  having  claims  amounting  to 
$64,000,  of  any  proceedings  against  such  assets  until  the  first 
creditor  is  paid,  is  so  manifest  that  it  can  require  no  argument 
to  show  that  it  ought  not  to  be  done.  Even  if  the  plaintiffs 
were  judgment  creditors,  they  could  only  have  an  order  allow- 
ing a  receiver  to  take  sufficient  of  the  assets  of  the  firm  to  ob- 
tain the  means  of  discharging  their  debt ;  and  until  they  are 
judgment  creditors  there  is  no  propriety  in  giving  them  a 
receiver,  unless  in  a  case  where  the  effect  of  such  receivership 
will  operate  to  secure  all  the  creditors  of  the  firm. 

I  think,  also,  there  is  a  difficulty  in  the  present  action  which 


NEW-YORK.  217 


La  Chaise  a.  Lord. 


forms  an  objection  to  the  granting  of  this  motion.  It  should 
be  required,  to  warrant  such  an  order,  that  all  the  defendants 
sought  to  be  made  liable  as  partners,  admit  the  indebtedness. 
The  defendant  Marks  (to  whose  answer  I  have  not  before  re- 
ferred, denied  such  indebtedness.  He  denies  any  joint  indebt- 
edness whatever,  and  does  not  admit  the  plaintiff's  claims.  If 
he  is  sought  to  be  held  liable  as  a  defendant,  he  certainly  does 
not  admit  the  indebtedness ;  but,  on  the  contrary,  his  answer 
shows  a  statement  of  facts  which  would,  if  proved,  entitle  him 
to  a  verdict.  Besides,  other  creditors  might  not,  even  if  the 
action  had  been  commenced  for  all  the  creditors,  have  been 
williDg  to  engage  in  such  a  contest. 

It  is  not  necessary  for  me  to  pass  upon  the  questions  argued 
before  me  as  to  the  liability  of  Marks.  His  liability  is  denied. 
If  it  exists  it  is  not  admitted,  so  as  to  warrant  me  in  granting 
this  motion.  If  he  is  not  liable,  it  can  only  be  decided  at  the 
end  of  a  protracted  litigation,  and  the  funds  and  assets  of  an 
insolvent  firm  should  not  be  tied  up  from  all  the  creditors  for 
the  purpose  of  enabling  one  creditor  to  enter  into  such  a  con- 
troversy. The  granting  of  an  injunction  and  appointing  of  a 
receiver  in  cases  of  this  kind  is  admitted  by  the  chancellor  to 
be  an  addition  to  the  former  powers  of  a  court  of  equity,  and 
it  seems  to  me  to  be  proper  that  the  power  should  only  be 
exercised  where  the  claim  is  undisputed,  and  where  the  pro- 
perty will  as  speedily  as  possible  be  applied  to  the  use  of  the 
creditors. 

An  objection  was  made  upon  the  argument,  and  it  appears 
in  the  defendant's  answer,  that  another  action  is  pending  in 
this  court  for  the  benefit  of  all  the  creditors,  and  that  such 
action  was  commenced  prior  to  the  present  one.  The  mere 
existence  of  such  an  action,  although  a  prior  one,  has  no  effect 
upon  this  motion.  "Whether  prior  or  subsequent  in  its  com- 
mencement, it  affords  no  ground  to  stay  proceedings  in  other 
actions,  until  after  a  judgment  has  been  rendered  in  a  case  in 
which  the  other  creditors  can  combine  and  make  themselves 
parties.  After  such  a  judgment  a  motion  could  formerly  be 
made  to  stay  proceedings  in  other  suits,  so  far  as  relates  to  the 
appointment  of  a  receiver.  This  was  settled  by  the  chancellor 
in  Inness  v.  Lansing,  before  referred  to.  (7  Paige,  583). 


218  ABBOTTS'  PRACTICE  REPORTS. 

Southwell  a.  Marryatt. 

This  motion  must  be  denied,  with  $10  costs,  and  the  tempo- 
rary injunction  dissolved,  without  prejudice  to  the  renewal  of 
it,  if  the  plaintiifs  shall  by  amendment  obviate  the  objections 
which  now  exist,  as  above  stated. 


SOUTHWELL  a.  MARRYATT. 

New  York  Common  Pleas  ;  Special  Term,  January,  1855. 
VACATING  JUDGMENT. — DEFECTIVE  SERVICE  OF  SUMMONS. 

Where  it  appears  that  a  defendant  has  endeavored  to  avoid  the  service  of  the  sum- 
mons, the  court,  on  a  motion  to  vacate  the  judgment  for  non-service  of  the  sum- 
mons, will  require  the  defendant  to  furnish  satisfactory  evidence  that  he  was  not 
served. 

Motion  to  set  aside  judgment. 

After  judgment  had  been  entered  and  execution  issued  in 
this  case,  the  defendant  asked  leave  of  the  plaintiff's  attorney 
to  be  let  in  to  defend,  alleging  that  he'  had  never  been  served 
with  any  copy  of  the  summons  and  complaint,  that  he  had  a 
good  defence  and  also  a  counter-claim. 

The  plaintiff's  attorney  consented  to  receive  an  answer,  pro- 
vided the  counter-claim  was  not  a  purchased  demand,  on  the 
defendant's  giving  security  for  the  debt,  and  serving  an  answer 
showing  the  dates,  particulars,  and  all  the  circumstances  of  the 
alleged  counter-claim,  and  consenting  to  a  reference.  The  de- 
fendant refused  to  accede  to  these  conditions  and  now  moved 
to  set  aside  the  judgment,  upon  a  verified  answer,  an  affidavit 
of  merits  and  affidavits  showing  that  the  defendant  had  never 
been  served  with  summons  and  complaint. 

By  the  affidavit  read  in  opposition  to  the  motion,  it  appeared 
that  the  plaintiff's  attorney  had  found  great  difficulty  in  serv- 
ing the  summons  and  complaint  on  the  defendant.  That  after 
making  ineffectual  attempts  for  some  months  to  serve  him, 
he  learned  in  October,  1854,  that  he  was  working  in  a  printing 
establishment  in  Frankfort-street.  He  thereupon  sent  the 
summons  and  complaint  round  by  his  clerk  to  be  served.  The 


KEW-YOEK.  2191 


^Southwell  »a.  Marryatt. 


clerk  however  did  not  know  the  defendant,  but  served  the 
papers  on  a  person  whom  he  supposed  to  be  the  defendant. 
On  returning  to  the  office  and  describing  to  the  attorney  the 
person  served,  the  attorney  thought  a  mistake  had  been  made, 
and  went  to  the  place  in  Frankfort-street  with  his  clerk.  He 
then  found  the  defendant,  but  discovered  that  the  papers  were 
in  possession  of  a  man  by  the  name  of  Blowers,  who,  how- 
ever agreed  to  give  them  up.  While  the  attorney  was  talking 
with  Blowers,  Marryatt,  the  defendant,  started  off.  The  attor- 
ney followed  him,  but  Marryatt  was  the  fleetest,  and  escaped 
from  the  attorney,  and  the  attorney  was  unable  to  make  the 
service  at  that  time. 

It  also  appeared  that  another  clerk  of  the  plaintiff's  attorney 
had  served  the  summons  and  complaint  on  some  one  answering 
the  description  which  had  been  given  him  of  the  defendant,, 
but  who  was  not  personally  known  to  him. 

H.  £rewster,  for  plaintiff. 

Allen,  Hall  and  Stacker,  for  defendant. 

INGRAHAM,  F.  J. — Although  the  proof  of  service  of  the  sum- 
mons on  the  defendant  is  not  of  that  conclusive  character  that 
it  ought  to  be,  yet  the  conduct  of  the  defendant  as  disclosed  in 
these  affidavits,  is  such  as  to  justify  the  court  on  a  motion  ta 
set  aside  the  judgment,  in  requiring  satisfactory  proof  that  the 
affidavit  of  service  was  untrue.  The  defendant  after  he  had 
knowledge  of  the  erroneous  service  of  the  summons  on  his 
foreman,  and  when  requested  to  wait  till  it  could  be  procured' 
from  the  foremanj  who  was  then  present,  so  that  it  could  be' 
served  on  him,  not  only  immediately  departed,  but  endeavored 
to  avoid  the  service  and  to  conceal  himself  from  the  plaintiff's 
attorney.  I  cannot  resist  the  conclusion  that  throughout, 
there  has  been  on  the  part  of  the  defendant,  a  constant 
endeavor  to  avoid  the  service  of  process  in  this  case ;  and  I  arn 
not  satisfied  that  it  was  not  served  on  the  defendant. 

As  the  defendant  has  sworn  to  merits,  and  the  service  of 
summons  is  involved  in  doubt,  the  defendant  is  permitted  to 
answer  within  five  days  upon  serving  with  his  answer  a  con- 
sent to  refer  the  case  to  a  referee.  If  the  parties  do  not  agree 


220  ABBOTTS'  PEACTICE  EEPOETS. 

Meyers  a.  Trimble. 

on  such  referee,  either  party  may  on  two  days  notice,  apply  to 
the  court  to  name  such  referee.  The  judgment  to  remain  as 
security,  and  the  costs  of  the  judgment  and  $10  costs  of  this 
motion  to  abide  the  event. 

If  defendant  does  not  accede  to  these  terms,  the  motion  is 
denied,  with  $10  costs. 


MEYERS  a.  TRIMBLE. 

York  Common  Pleas ;  Special  Term,  January,  1855 ; 
Again,  February,  1855. 

ADMISSION  .OF  PAKT  OF  PLAINTIFF'S  CLAIM. — SATISFACTION. 

I.  Where  defendant  by  answer  admits  a  part  of  plaintiffs  claim  to  be  just,  an 
order  requiring  him  to  satisfy  such  part,  will  be  made  in  the  Common  Pleas,  not- 
withstanding that  the  defendant  has  made  an  offer  in  writing  to  allow  the  plain- 
tiff to  take  judgment  for  the  sum  admitted  to  be  due. 

II.  Such  an  order  will  be  enforced  by  attachment,  if  necessary. 

I.  January. — Motion  that  defendant  be  required  to  satisfy  a 
part  of  plaintiff's  claim,  admitted  by  his  answer  to  be  just. 

No  defence  was  made  to  the  complaint  in  this  action,  but  a 
counter-claim  was  interposed,  leaving  however  a  balance  due 
to  the  plaintiffs  of  $310.  The  defendant  offered  to  let  the 
plaintiff  take  judgment  for  that  amount. 

The  plaintiff  however  moved  under  §  244  of  the  Code  for  an 
order  directing  the  defendants  to  pay  the  amount  admitted  to 
be  due. 

A.  Mathews,  for  the  motion. 
Meeks  &  Waite,  opposed. 

INGRAHAM,  F.  J. — The  defendants  by  their  answer,  do  not 
deny  the  plaintiff's  claim,  but  set  -up,  as  a  counter-claim, 
moneys  due  to  him,  leaving  a  balance  due  from  the  defendants 
exceeding  three  hundred  dollars.  To  this  there  is  no  defence 
pretended,  and  under  any  circumstances  the  plaintiff  would  be 
entitled  to  recover  that  amount.  The  defendants  have  also 
offered  to  permit  the  plaintiff  to  take  judgment  for  the  same  sum. 


NEW-YORK.  221 


Meyers  a.  Trimble. 


The  plaintiff  now  moves  for  an  order  directing  the  defendant 
to  pay  the  amount  admitted  to  be  due. 

It  would  be  necessary,  before  such  an  order  could  be  made, 
to  ascertain  clearly  that  the  defendant  made  no  defence  to  that 
portion  of  the  claim,  and  when  that  is  established,  there  can  be  no 
cause  why  the  defendants  should  not  be  required  to  make  pay- 
ment. If  the  defendants  have  a  counter-claim  to  the  plain- 
tiff's demand,  sufficient  remains  to  protect  them  in  case  of  a 
recovery.  Any  other  rule  would  enable  a  defendant,  by 
setting  up  a  counter-claim  for  a  small  amount,  to  deprive  his 
creditor  for  a  long  time  of  his  rights,  to  which  in  reality  no- 
defence  existed. 

It  was  said  the  Superior  Court  had  decided  otherwise,  in 
Dolan  v..  Petty,  (4  Sand.  S.  C.  It.  673),  but  in  that  case  there 
was  not  a  distinct  admission  of  a  balance  being  due,  and  the 
discretion  of  the  court  was  properly  exercised  in  refusing  that 
motion.*  A  case  recently  decided  was  also  referred  to  ;  but 
as  the  same  has  not  been  submitted  to  me,  I  am  unable  to  see 
whether  it  is  applicable  to  this  motion  or  not. 

It  was  also  suggested  that  there  was  difficulty  in  enforcing 
such  an  order,  and,  therefore,  it  should  be  refused  ;  but  such  a 
reason  is  not  a  good  one  to  warrant  us  in  .refusing  to  make  it. 
If  the  order  cannot  be  enforced,  the  defendants  will  reap  the 
benefit  of  the  defect  in  the  law.  No  difficulty  however,  need 
be  anticipated  on  that  part  of  the  proceeding. 

I  see  no  reason  for  refusing  the  motion.  The  same  is 
granted. 


6 


II.  February. — Motion  in  the  same  case  for  an  attachment. 

*  In  Smith  v.  Olssen,  (4  Sand.  711),  DUER,  J.,  on  advisement  with  all  the  justices 
of  the  Superior  Court,  laid  down  the  general  rule,  that  that  court  will  not  make  any 
order  for  payment  by  the  defendant  under  the  last  clause  of  subdivision  five  of  sec- 
tion 244  of  the  Code  upon  his  admission  in  the  answer,  where  it  is  made  to  appear 
that  the  defendant  has,  previous  to  answering,  made  to  the  plaintiffs  an  offer  in 
writing,  allowing  him  to  take  judgment  for  the  sum  admitted  to  be  due  by  the 
answer,  as  prescribed  in  section  385.  In  the  present  case  the  offer  was  served  Dec. 
7,  1854.  The  answer  was  verified  on  the  same  day ;  but  whether  the  offer,  or 
answer  was  first  served,  does  not  appear,  from  the  motion  papers. 

The  case  referred  to  as  "  recently  decided,"  in  the  same  court,  was,  we  believe, 
that  above  stated. 


222  ABBOTTS'  PRACTICE  EEPORTS. 

Meyers  a.  Trimble. 

The  defendant  having  for  more  than  twenty  days  neglected 
to  obey  the  order  of  Ingraham,  J.,  above  mentioned,  the  plain- 
tiff moved  for  an  attachment  to  enforce  his  obedience  to  it. 

A.  Matthews,  for  the  motion.  An  attachment  is  a  provi- 
sional remedy,  within  the  meaning  of  section  244. 

A.  Waite,  opposed.  If  an  order  like  this  can  be  enforced  by 
attachment,  it  is  done  in  direct  contravention  of  the  statute 
abolishing  imprisonment  for  debt.  The  court  should  not 
enforce  by  attachment,  the  payment  of  a  mere  debt,  but 
should  confine  that  remedy  to  cases  where  its  use  is  necessary 
in  order  to  reach  a  specific  fund  ;  and  to  cases  of  fraud,  trust, 
and  the  like.  If  we  are  honest  enough  to  admit  that  a  sum  is 
due,  then  by  the  plaintiff's  argument,  we  are  to  be  imprisoned 
if  we  have  not  the  means  of  paying  it ;  whereas  if  we  had 
denied  it,  or  let  the  case  go  by  default,  we  could  never  have 
been  imprisoned.  Both  the  statutes  are  to  be  taken  together ; 
and  section  244  is  to  be  construed  in  favor  of  liberty.  The 
plaintiff  may  enforce  this  payment  by  execution  on  final 
judgment. 

[DALY,  J. — That  is  not  enforcing  it  as  a  provisional  remedy.] 
The  Code  points  out  those  cases  in  which  a  party  may  be 
arrested  ;  and  in  no  part  of  its  provisions  does  it  contemplate 
that  the  humane  provisions  of  the  act  of  1821,  shall  be  abro- 
gated. It  was  never  intended  that  a  plaintiff  should  have  any 
other  right  than  to  issue  execution  against  the  property  of  a 
debtor,  to  enforce  the  payment  of  a  mere  debt. 

Matthews. — The  Code  has  been  passed  since  the  act  of  1821, 
and  governs  its  construction.  The  answer  admits  a  part  of  the 
debt  to  be  due,  and  we  are  entitled  by  the  provisions  of  section 
244,  to  compel  its  payment  by  attachment. 

DALY,  J. — (Orally).  The  granting  of  this  attachment  does 
not  necessarily  conflict  with  the  law  abolishing  imprisonment 
for  debt.  The  Code  declares  that  where  the  answer  admits  a 
part  of  the  plaintiff's  claim  to  be  due,  the  court  may  enforce 
an  order  directing  the  defendant  to  satisfy  so  much  of  the 


NEW-YOKE.  223 


Merritt  a.  Thompson. 


claim,  in  the  same  way  as  it  enforces  a  provisional  remedy ; 
that  is,  by  attachment.  Such  an  order  has  been  made.  The 
defendant  has  neglected  to  comply  with  it,  within  the  time 
given  to  him,  and  the  plaintiff  is  entitled  to  an  attachment, 
for  presumptively  the  defendant  is  in  contempt. 

There  need  be  no  conflict  with  the  law  abolishing  imprison- 
ment for  debt.  Upon  the  return  of  the  writ  the  defendant 
may  purge  his  contempt.  He  may  satisfy  the  court  of  his 
pecuniary  inability  to  comply  with  the  order,  and  if  he  does 
so,  the  court  would  undoubtedly  discharge  the  attachment. 

Motion  granted* 


MERRITT  a.  THOMPSON. 

New  York  Common  Pleas ;  General  Term,  January,  1855. 

ADMISSION  OF  PAKT  OF  PLAINTIFF'S  CLAIM. — SATISFACTION. 

When  a  fund  in  litigation  has  been  brought  into  court,  and  the  answer  of  defendant 
admits  a  part  of  it  to  be  due  to  the  plaintiff,  but  disputes  his  claim  to  the  residue, 
— the  court  may  order  the  sum  admitted  to  be  due  to  be  paid  over  to  the  plaintiff 
without  prejudice  to  his  further  claims. 

Previous  offers  by  the  defendant  to  pay  that  sum  to  the  plaintiff,  in  full  satisfaction 
of  his  claims,  form  no  reason  why  such  an  order  should  be  refused. 

The  distinction  between  an  offer  on  the  part  of  defendant  to  let  judgment  be  taken 
against  him  for  a  specified  sum,  and  his  admission  by  answer  that  a  part  of 
plaintiff's  claims  is  just. 

It  seems, — that  the  general  term  should  not  on  appeal  from  an  order  directing  the 
payment  of  money  admitted  to  be  due  to  the  plaintiff,  review  the  discretion  exercised 
at  special  term  in  respect  to  conditions  on  which  the  order  should  be  granted. 

Appeal  from  an  order  at  special  term  directing  payment  to 
plaintiff  of  moneys  admitted  to  be  due  to  him. 

•     . 

The  plaintiff  set  forth  in  his  complaint  that  the  defendant 
was  indebted  to  him  for  the  proceeds  of  the  sale  of  the  plain- 
tiff's interest  in  the  ship  Mischief,  and  also  for  earnings  of  the 
ship ;  which  proceeds  and  earnings  defendant  had  received  as 
agent  of  the  plaintiff,  and  had  been  deposited  by  him  to  his 
own  credit  with  his  bankers.  He  prayed  and  obtained  an 
injunction  forbidding  the  defendant  to  interfere  with  the 
deposits. 

The  answer  admitted  that  a  certain  sum  was  due  the  plain- 
tiff, but  denied  the  residue  of  his  claim. 


224  ABBOTTS'  PRACTICE  REPORTS. 

Merritt  a.  Thompson. 


On  the 'application  of  defendant,  an  order  was  then  made, 
allowing  him  to  pay  into  court  the  fund  deposited  with  his 
bankers, — and  this  was  done. 

Subsequently  the  plaintiif  applied  at  special  term  for  an 
order  directing  the  clerk  to  pay  over  to  him,  out  of  the  fund 
in  court,  the  amount  admitted  by  the  answer  to  be  due  him. 
The  order  applied  for  was  granted,  the  following  opinion  being 
filed. 

INGRAHAM,  F.  J. — The  defendant  by  his  answer  admits  that, 
after  deducting  all  his  alleged  counter-claims,  there  remains  a 
balance  due  to  the  plaintiff,  and  such  balance  amounts  to 
$2,675  34:.  To  this  part  of  the  claim  no  defence  is  set  up,  and 
the  plaintiff  now  moves  that  the  defendant  be  ordered  to  pay 
over  such  moneys,  and  that  so  much  of  the  money  now  depo- 
sited in  court  be  paid  over  therefore.  For  the  reasons  why  in 
such  cases  the  motion  should  be  granted,  I  refer  to  the  opinion 
in  the  case  of  Meyers  v.  Trimble,*  decided  this  day  at  special 
term.  It  is  objected  by  the  defendant,  in  addition  to  other 
objections  therein  referred  to,  that  in  this  case  a  difference  of 
interest  will  accrue  in  favor  of  the  defendant  on  his  counter- 
claim in  consequence  of  the  money  being  deposited  in  the 
Trust  Company,  under  an  order  of  the  court,  at  a  low  rate  of 
interest.  The  objection  is  unavailing.  The  money  in  the 
Trust  Company  was  not  placed  there  at  the  request  of  the 
plaintiff,  but  of  the  defendants,  and,  if  the  interest  is  small, 
the  plaintiff  only  receives  at  that  rate  on  this  order.  The 
defendant  had  no  right  to  object  to  what  was  done  at  his 
request,  and  if  it  were  otherwise,  the  defendant  has  security 
in  the  bond  given  on  the  injunction  sufficient  to  protect  him 
against  loss  on  the  counter-claim. 

The  motion  must  be  granted. 

From  this  decision  the  defendant  appealed. 

F.  Dykers,  for  appellant.  I.  Section  244:  of  the  Code,  is 
inconsistent  with  the  whole  spirit  of  our  legislation  in  regard 
to  imprisonment  for  debt.  It  gives  the  court  power  in  any 
case,  where  a  sum  is  admitted  to  be  due,  to  incarcerate  the 

*  Ante,  p.  219. 


NEW-YORK.  225 


Merritt  a.  Thompson. 


defendant  in  case  he  disobeys  the  mandate  to  pay,  whether  he 
is  wholly  unable  to  pay  or  not.  (Dolan  v.  Petty,  4  Sand.  /SI 
C.  R.  673). 

II.  In  the  present  case  one  of  the  sureties  put  in  by  plaintiff 
on  the  arrest  and  injunction,  is  insolvent,  the  other  is  in  bad 
credit,  and  the  plaintiff  himself  is  not  a  householder.  Certainly 
it  should  be  made  a  condition  of  granting  the  order  that  plain- 
tiff put  in  fresh  security. 

H.  F.  Clark,  for  respondent. 

WOODRUFF,  J. — The  complaint  herein  is  filed  to  recover  from 
the  defendant  a  large  sum  of  money  alleged  to  have  come  to 
the  defendant's  hands  as  agent  for  the  plaintiff;  and  an  injunc- 
tion having  been  granted  to  restrain  the  disposition  of  the  spe- 
cific fund  in  the  defendant's  hands  or  in  the  hands  of  his 
banker,  the  defendant  himself  moved  for  and  obtained  an 
order,  in  pursuance  of  which  the  money  held  under  injunction 
was  brought  into  court  and  deposited  in  the  New  York  Life 
and  Trust  Company  to  abide  the  further  order  of  the  court. 
Upon  the  coming-in  of  the  answer,  the  plaintiff  applied  at  spe- 
cial term  before  the  first  judge  and  obtained  an  order  upon 
motion,  directing  the  payment  to  the  plaintiff  of  the  sum  of 
$2675,34:  out  of  the  money  so  brought  into  court.  This  motion 
was  founded  upon  the  provisions  of  §  244  (Subdiv.  5)  of  the 
Code  of  Procedure,  and  from  the  order  so  made  the  defendant 
appeals. 

I  concur  with  the  first  judge  in  the  propriety  of  making  the 
order  upon  the  plain  and  unqualified  admissions  in  the  defend- 
ant's answer.  The  plaintiff  claims  the  proceeds  of  a  sale  of 
the  ship,  made  in  China.  The  defendant  sets  up  a  sale  of  the 
ship  at  San  Francisco  for  a  less  sum,  admits  that  the  plaintiff 
is  entitled  to  the  proceeds  of  that  sale,  and  denies  that  the 
plaintiff  has  any  interest  in  the  sale  in  China,  (which  he  avers 
was  made  for  the  account  of  the  San- Francisco  purchaser). 
And  the  defendant  annexes  to  his  answer  a  statement  of  his 
account  with  the  plaintiff,  crediting  to  him  the  proceeds  of  the 
sale  at  San  Francisco,  and  charging  him  with  all  the  remit- 
tances and  all  his  claims  for  commission  and  for  matters  of 

set-off,  and  by  his  sworn  answer  declares  it  to  be  a  "  full,  accu- 
15 


226  ABBOTTS'  PRACTICE  REPORTS. 


Merritt  a.  Thompson. 


rate  and  true  account,"  £c.,  and  that  account  in  very  terms 
states  that  the  "  balance  due  W.  II.  Merritt  (the  plaintiff)  is 
$2675,34" — and  again  in  his  answer  he  denies  that  any  greater 
sum  than  $2675,34  is  due  to  the  plaintiff. 

Now,  however  much  the  parties  differ  in  relation  to  the 
other  matters  stated  in  the  complaint  and  answer  respectively, 
it  is  not  disputed  in  any  form  that  at  least  so  much  as  $2675,34 
of  the  moneys  now  in  court  do  belong  to  the  plaintiff.  To  this 
extent  the  defendant's  answer,  read  with  the  schedule  annexed, 
is  unqualified. 

This  appears  to  me  to  be  the  precise  case  contemplated  by 
the  provisions  of  the  Code  above  referred  to,  viz. :  "  when  the 
answer  of  the  defendant  admits  part  of  the  plaintiff's  claim  to 
be  just,  the  court  on  motion  may  order  such  defendant  to  satisfy 
that  part  of  the  claim,  and  may  enforce  the  order  as  it  enforces 
a  provisional  remedy." 

But  the  counsel  for  the  appellant  insists  that  the  defendant 
has  offered  and  tendered  to  pay  this  sum  heretofore,  and  that 
therefore  the  court  ought  not  to  make  the  order  for  the  pay- 
ment, but  require  the  plaintiff  to  accept  the  offer  as  in  full  for 
his  claim  if  he  takes  the  money  at  all.  It  appears  to  me  that 
nothing  could  be  more  inequitable ;  it  is  in  effect  saying  to 
him,  "  abandon  your  claim,  take  just  what  the  defendant 
admits  to  be  due,  admit  all  that  the  defendant  alleges  as  a  de- 
fence, and  be  content ;  if  you  will  not  do  this  you  shall  not 
take  the  money  which  is  your  own,  to  which  the  defendant 
admits  he  has  no  title,  and  which  is  in  court  awaiting  the  order 
which  may  be  made,  and  which  (whatever  may  be  the  result 
of  the  matter  in  dispute)  must  be  decreed  to  belong  to  you." 

Where  a  defendant  is  insolvent,  and  either  comes  in,  by  the 
offer  to  allow  judgment  to  be  taken  against  him  for  a  sum 
named  under  §  385  of  the  Code,  or  by  his  answer  makes  such 
an  offer,  the  court  should  and  would  be  very  careful  not  to 
substitute  process  of  attachment  for  contempt  in  the  place  of  a 
judgment  and  ordinary  execution,  since  the  former  might  in- 
volve imprisonment  of  the  body  in  many  cases  where  such 
imprisonment  for  a  mere  debt  was  probably  not  contemplated 
by  the  legislature.  But  where,  as  in  the  present  case,  the  de- 
fendant not  only  admits  this  part  of  the  plaintiffs  claim  to  be 


NEW-YOBK.  227 


Merritt  a.  Thompson. 


just,  but  actually  offers  to  pay  it  if  the  plaintiff  will  abandon 
his  other  claims,  and  especially  where  the  money  is  itself 
under  the  control  of  the  court,  no  such  reason  exists,  and  there 
seems  to  me  to  be  no  reason  for  withholding  the  money  from 
,  the  plaintiff. 

In  giving  power  to  the  court  (when  a  defendant  admits  a 
sum  to  be  due)  to  make  a  peremptatory  order  that  the  defend- 
ant pay  it  and  to  enforce  the  order  by  attachment,  the  legisla- 
ture did  not  intend  to  introduce  imprisonment  for  debt  in  cases 
where  it  is  not  allowed  upon  other  grounds,  except  when  the 
refusal  to  pay  was  contumacious,  and  not  the  result  of  inability. 
If  a  defendant  has  the  money  and  only  refuses  because  he  is 
unwilling,  it  is  in  all  respects  proper  that  he  should  be  com- 
pelled to  pay  and  be  imprisoned  until  he  does  so. 

The  counsel  for  the  appellant  further  insists  that  the  order 
should  at  all  events  have  only  been  granted  upon  terms — that 
it  appears  by  the  affidavits  read  on  the  motion  that  one  of  the 
sureties  to  the  undertakings  given  on  granting  the  order  of 
arrest  and  the  injunction  herein,  has  become  insolvent,  and  the 
plaintiff  ought  to  have  been  required  to  give  a  further  under- 
taking. It  appears  to  me  that  such  a  requirement  would  not 
have  been  unreasonable,  but  I  do  not  think  the  order  should 
be  reversed  upon  that  ground. 

Indeed  I  doubt  very  much  the  propriety  of  reviewing  upon 
appeal  the  discretion  exercised  by  the  judge  at  special  term. 
It  is  true  that  an  order  granting  or  refusing  a  provisional 
remedy  may  be  appealed  from,  and  hence  this  appeal  is  pro- 
perly brought,  and  under  the  same  provision  of  the  Code  an 
appeal  may  be  brought  from  an  order  directing  an  arrest.  But 
on  an  appeal  in  the  latter  case  the  court  would  not,  I  think, 
review  the  discretion  exercised  by  the  judge  in  determining 
whether  such  order  shall  issue  upon  an  undertaking  "  with 
sureties"  or  an  undertaking  "  without  sureties,"  either  being 
proper  as  the  judge  granting  the  order  may  direct. 

The  same  remarks  are  applicable  to  an  order  granting  an 
injunction  either  on  an  undertaking  by  the  plaintiff  with  sure- 
ties or  without  sureties,  as  the  court  or  judge  may  direct.  The 
question  whether  or  not  in  such  case  the  injunction  was  pro- 
per, is  undoubtedly  the  subject  of  review,  but  I  very  much 


228  ABBOTTS'  PRACTICE  REPORTS. 

Slauson  a.  Conkey. 

doubt  the  propriety  of  considering  those  matters  of  discretion, 
which  relate  to  the  terms  or  conditions  imposed.  So  in  regard 
to  the  granting  or  refusing  of  costs  or  requiring  a  party  to  give 
time  or  other  indulgence  as  a  condition  of  granting  an  order, 
it  seems  to  me  that  the  action  of  the  special  term  should  be 
regarded  as  final  when  no  right  of  the  party  nor  any  rule  of 
law  is  violated. 

Again,  in  the  present  case,  the  court,  on  granting  the  injunc- 
tion, might  have  dispensed  with  sureties  altogether,  or  might 
have  been  satisfied  with  the  undertaking  on  the  part  of  the 
plaintiff  with  one  surety.  The  defendant  has  now  the  liability 
of  the  plaintiff  himself  and  of  one  solvent  surety,  and  this  will 
ordinarily  prove  ample  to  protect  the  defendant. 

Besides,  the  only  damages  which  the  defendant  is  liable  to 
sustain  by  the  litigation,  against  which  he  could  ask  indemnity, 
is  a  possible  loss  of  interest  on  the  fund  in  court  at  the  rate  of 
two  per  cent  per  annum,  and  his  costs  of  suit.  There  is  no 
pretence  that  the  plaintiff  is  not  solvent  and  fully  able  to  meet 
any  liability  to  indemnify  the  defendant  in  these  particulars  if 
the  latter  should  recover  judgment.  There  is,  moreover,  at 
least  one  solvent  surety  to  the  plaintiff's  undertaking. 

I  am  not,  therefore,  disposed  to  interfere  with  the  discretion 
exercised  at  special  term  in  not  imposing  upon  the  plaintiff 
the  duty  of  giving  further  security  as  a  condition  of  granting 
the  order,  and  on  the  merits  I  think  the  order  was  eminently 
just  and  proper.  It  should  therefore  be  affirmed. 


SLAUSON  a.  CONKEY. 
Supreme  Court,  First  District;  Special  Term,  January,  1855. 

L    V 

ADMISSION  OF  PART  OF  PLAINTIFF'S  CLAIM.  —  SATISFACTION. 

Plaintiff  sued  to  recover  the  price  of  goods  sold  to  defendant,  with  damages  for 
non-delivery  of  notes  agreed  to  be  given  in  payment  for  them.  The  defendant 
by  answer,  admitted  the  purchase  of  the  goods  at  the  price  stated. 

Held  ;  —  that  an  order  might  be  made  under  $  224  of  the  Code,  requiring  the  defend- 
ant to  pay  the  price  of  the  goods. 

Motion  that  defendant  be  required  to  satisfy  a  part  of  plain- 
tiff's claim,  admitted  by  his  answer  to  be  just. 


NEW-YOEK.  229 


Slauson  a.  Conkey. 


KOOSEVELT,  J. — The  defendant  admits  in  his  answer  that  he 
has  had  the  plaintiff's  goods — that  he  purchased  them  at  the 
price  stated — that  such  price  was  to  he  paid  in  certain  speci- 
fied indorsed  notes  at  six  months,  which  he  was  to  forward  to 
the  plaintiff  within  three  or  four  weeks — that  he  has  not  paid 
for  the  goods  either  in  such  notes  pursuant  to  his  agreement, 
or  otherwise — that  he  has  nevertheless  sold  a  part  of  them  and 
assigned  the  residue  for  the  benefit  of  creditors. 

The  plaintiff's  action  is  for  the  value  of  the  goods,  treating 
the  sale  as  a  conditional  one,  and  the  defendant's  acts  as  a 
wrongful  conversion. 

They  are  willing  now,  however,  instead  of  incurring  the 
expense  and  delay  of  a  trial,  to  take  the  defendant's  answer, 
and  to  confine  their  remedy  to  its  admissions. 

"  When  the  answer  of  the  defendant,  (says  the  amended 
Code,  §  244),  admits  part  of  the  plaintiff's  claim  to  be  just,  the 
Court  on  motion,  may  order  such  defendant  to  satisfy  that  part 
of  the  claim,  and  may  enforce  the  order  as  it  enforces  a  provi- 
sional remedy." 

Such  motion  is  now  made.  Strictly  construed,  the  case 
would  seem  not  to  come  within  the  provision.  In  principle, 
however,  it  does.  And  the  Code  prohibits  a  strict  construc- 
tion, not  only  of  its  own  language,  but  of  the  language  of  all 
proceedings  under  it.  All  allegations  are  to  be  "  liberally 
construed."  And  in  the  176th  section,  lest  the  object  should 
in  any  case  be  lost  sight- of,  the  legislature  have  dictated  a  rule 
so  clear  and  comprehensive  as  to  admit  of  no  doubt,  and  so 
positive  as  to  allow  of  no  evasion.  "  The  court,  (say  they) 
shall  in  every  stage  of  an  action,  disregard  any  error  or  defect 
in  the  pleadings  or  proceedings  which  shall  not  affect  the  sub- 
stantial rights  of  the  adverse  party ;  and  no  judgment  shall  be 
reversed  or  affected  by  reason  of  such  error  or  defect." 

If  there  be  any  defect  therefore  in  the  complaint  in  its  adap- 
tation to  the  case  admitted  in  the  answer,  such  defect  must  be 
disregarded,  unless  it  affect,  as  it  is  obvious  in  this  case  it  does 
not,  the  substantial  rights  of  the  defendant.  Treating  then  the 
suit  as  STibstantially  an  action  for  the  price  of  the  goods,  and 
perhaps  something  more  in  the  shape  of  damages  for  the  non- 
-  delivery  of  the  notes ;  and  treating  the  answer  as  an  admission 


230  ABBOTTS'  PRACTICE  REPORTS. 

Jacques  a.  Greenwood. 

of  the  justice  of  the  first  part  of  the  claim,  I  am  compelled  to 
make  an  order  requiring  the  defendant  to  satisfy  that  part,  to 
wit,  $678  34,  with  interest  from  the  21st  May,  1851. 

I  am  the  more  free  to  make  this  order,  as  it  can  do  no  con- 
ceivable injustice  to  the  defendant,  while  a  denial  of  the  appli- 
cation could  only  result  in  delay,  vexation  and  expense  to  the 
plaintiif,  turning  him  over  either  to  a  new  suit  or  to  a  very 
superfluous  trial  by  jury,  to  determine  an  issue  which 
the  defendant  to  all  practical  purposes,  has  substantially 
admitted." 

Order  accordingly,  with  costs. 


JACQUES  a.  GREENWOOD. 

New  York  Common  Pleas  •  Special  Term,  January,  1855.. 
ENTRY  OF  JUDGMENT. — JOINT  DEBTORS. 

Where  several  defendants  are  sued  on  a  joint  liability,  there  can  only  be  a  joint 
recovery  and  judgment ;  and  no  judgment  can  be  entered  by  plaintiff,  until  all 
the  defendants  served  have  had  the  full  time  to  answer. 

Where  a  joint  answer  of  two  defendants  was  served  after  the  time  for  answering 
by  one  of  them  had  expired,  and  the  plaintiff's  attorney  returned  it,  waited  until 
the  time  of  the  other  defendant  had  also  expired,  and  then  entered  judgment : — 
Held,  that  the  judgment  was  regular. 

Motion  to  set  aside  judgment. 

The  action  was  upon  a  promissory  note  made  by  the  defend- 
ants, Greenwood  and  Brewster,  in  their  firm  name"  of  Green- 
wood &  Co.  On  the  last  day  for  answering  by  the  defendant 
Greenwood,  which  was  the  day  after  the  defendant  Brewster's 
time  expired,  towards  the  latter  part  of  the  afternoon,  the 
attorney  of  both  the  defendants,  served  a  joint  answer  by  both 
of  them.  The  plaintiff's  attorney  returned  it,  with  written 
notice  that  he  could  receive  no  answer  from  Brewster,  his 
time  having  expired.  The  next  day  he  entered  the  judgment 
which  was  now  sought  to  be  set  aside. 

J.  A.  Stoughtenburgh,  for  the  motion. 
W.  JR.  Stafford,  opposed. 


NEW-YOKE.  231 


Jacques  a.  Greenwood. 


INGKAHAM,  F.  J. — In  an  action  against  joint  debtors,  the  time 
to  answer  had  expired  as  to  one  defendant,  but  not  as  to  the 
other.  The  defendants'  attorney  served  an  answer  as  to  both, 
which  was  returned  by  the  plaintiff's  attorney,  and  on  the 
same  day  judgment  was  entered  up  against  both  defendants. 
A  motion  is  now  made  to  set  aside  the  judgment. 

The  practice  of  entering  up  judgment  against  two  joint 
debtors  on  the  default  of  one,  before  the  time  for  answering  on 
the  part  of  the  other  defendant  had  expired,  cannot  be 
approved.  The  right  to  take  judgment  against  one  defendant 
on  default,  before  the  other  has  answered  or  made  default, 
only  applies  to  cases  where  a  several  judgment  is  proper,  and 
cannot  authorize  a  judgment  against  both  defendants,  even  so 
far  as  to  affect  only  partnership  property.  But  where  the 
liability  is  only  a  joint  liability,  there  can  only  be  a  joint 
recovery  and  judgment,  and  no  judgment  can  be  entered  up 
until  all  the  parties  served  have  had  the  full  time  to  answer. 
The  136th  section  of  the  Code  lays  down  the  practice  very 
clearly,  where  it  says,  if  all  the  defendants  have  been  served, 
judgment  may  be  taken  against  them  severally,  when  the 
plaintiff  would  have  been  entitled  to  judgment  if  the  action 
had  been  against  such  defendants  alone.  If  the  action  be 
against  defendants  jointly  liable,  the  plaintiff  may  proceed 
against  the  defendant  served,  and  Justice  Parker's  comments 
on  this  section  in  Mechanics  and  Farmer's  Bank  v.  Eider,  (5 
How.  Pr.  It.,  401),  show  that  this  judgment  is  irregular. 

I  would  deny  this  motion  if  I  could  consistently  with  the 
provisions  of  the  Code,  because  it  is  apparent  to  me  that  the 
answer  is  evidently  put  in  for  delay,  and  in  some  respects  must 
be  false.  The  answer  admits  the  making  of  the  note  by  the 
defendants  as  partners,  to  the  payee,  and  denies  any  knowledge 
or  information  sufficient  to  form  a  belief  as  to  the  other  alle- 
gations of  the  complaint.  One  allegation  is  that  the  defend- 
ants have  not  paid  the  note,  and  it  can  hardly  be  believed 
that  the  defendants  have  not  information  or  knowledge  suffi- 
cient to  form  a  belief  whether  they  have  paid  such  note  or 
not.  The  other  allegations  which  are  denied  are  the  indorse- 
ment by  the  payee,  and  that  the  plaintiffs  are  the  lawful 
holders  of  the  note.  Of  both  these  facts  the  defendants  could 


232  ABBOTTS'  PEACTICE  EEPORTS. 

Jacks  a.  Darrin. 

have  satisfied  themselves  with  much  less  trouble  than  they 
could  have  made  and  sworn  to  such  an  answer. 

The  plaintiffs  attorney  was  right  in  returning  the  joint 
answer  of  the  defendants  after  the  time  for  pleading  by  Brew- 
eter  had  expired,  and  as  he  had  waited  until  the  time  for  the 
other  defendant  to  answer  had  also  expired,  his  judgment  is 
regular.  This  motion  is  denied,  with  leave  to  defendants  to 
renew  motion  on  papers  disclosing  the  defence  they  intend  to 
set  up  to  the  plaintiff's  claims.  The  costs  of  this  motion  to 
remain  until  renewed  motion  is  decided. 


JACKS  a.  DAREIN. 

Hew  York  Common  Pleas  /  Special  Term,  January,  1855. 
COSTS. — REVERSAL  OF  JUSTICE'S  JUDGMENT. 

On  the  reversal  of  a  judgment  of  a  justice  of  a  district  court,  the  appellant  is  enti- 
tled to  those  costs  of  the  court  below,  to  which  he  would  have  been  entitled  if 
the  proper  judgment  had  been  rendered  there. 

Appeal  from  taxation  of  costs  by  the  clerk. 

This  case  was  brought  into  this  court  on  appeal  from  the 
judgment  of  a  district  court,  and  that  judgment  was  reversed.* 
The  appellant,  who  was  the  plaintiff  below,  desired  the  clerk 
to  include  in  the  amount  of  costs  to  be  inserted  in  the  entry  of 
judgment  awarded  to  him,  the  costs  to  which  he  would  have 
been  entitled  had  judgment  been  rendered  in  his  favor  in  the 
court  below.  This  the  clerk  refused  to  do,  and  appeal  was 
taken  from  his  decision. 

P.  Van  Antwerp,  for  appellant. 
W.  R.  Stafford,  for  respondent. 

INGRAHAM,  F.  J. — The  question  submitted  to  me  in  this  case  is, 
whether,  on  a  reversal  of  a  judgment  of  an  inferior  court,  the 
appellant  is  entitled  to  the  costs  of  the  court  below,  which  he 
would  have  been  entitled  to  if  the  proper  judgment  had  been 
rendered  there. 

See  Ante,  148. 


NEW-YORK.  233 


Jacks  a.  Darrin. 


By  the  371st  section  of  the  Code,  the  party  succeeding  in 
the  appeal  is  to  receive  the  fees  and  costs  therein  specified, 
and  no  other  excapt  disbursements.  These  costs  so  specified 
evidently  were  intended  as  the  compensation  for  the  services 
on  the  appeal,  and  the  disbursements  must  likewise  be  limited 
to  disbursements  made  during  the  appeal.  By  the  354th  sec- 
tion, provision  is  made  for  the  repayment  to  the  appellant, 
when  successful,  of  the  costs  of  the  court  below,  paid  by  him 
on  appealing.  By  the  330th  section,  in  case  of  a  reversal  of 
the  judgment,  the  court  is  to  restore  the  appellant  to  all  pro- 
perty and  rights  lost  by  the  erroneous  judgment.  If  the  proper 
judgment  had  been  rendered  in  the  court  below,  the  appellant 
would  have  recovered  his  costs  there.  This  was  a  right  given 
him  by  the  statute,  of  which  he  was  deprived  by  the  erroneous 
judgment  below,  and  which  the  courts  should  make  restitu- 
tion by  ordering  it  now  to  be  paid. 

This  section  has  received  a  similar  construction  by  Judge 
Welles,  in  the  case  of  Estus  v.  Baldwin,  (9  How.  P.  7?.,  80). 

The  court,  however,  must  make  such  restitution,  and  it  can- 
not be  done  as  a  matter  of  course  by  the  clerk.  The  better 
course  probably  would  be  to  submit  with  the  appeal  papers 
the  application  for  costs,  in  case  of  reversal,  with  the  certifi- 
cate of  the  clerk  below  of  the  amount*of  costs,  and  in  such  case 
the  order  could  be  made  on  deciding  the  appeal. 

In  this  case  the  parties  have  submitted  all  the  facts,  and  the 
order  can  now  be  made  directing  the  clerk  to  include  in  the 
bill  of  costs  the  ,amount  as  certified  to  by  the  clerk  of  the 
Marine  Court. 

The  clerk  was  right  in  rejecting  the  item  of  costs  paid  by 
the  appellant  on  his  appeal.  That  money  remains  with  the 
court  below,  and  as  before  stated,  is  to  be  repaid  by  the  justice 
in  case  of  reversal.  The  respondent  has  never  received  it,  and 
it  should  not  form  part  of  any  judgment  against  him. 
No  costs  allowed  on  this  motion  to  either  party. 


234  ABBOTTS'  PRACTICE  REPORTS. 

Miller  a.  De  Peyster. — Anderson  a.  The  Same. 

MILLER  a.  DE  PEYSTER.— ANDERSON  a.  THE  SAME. 

New  York  Superior  Court ;  General  Term,  January,  1855. 

COSTS. — INTERPLEADER 

Upon  a  bill  of  interpleader,  the  unsuccessful  claimant  adjudged  to  pay  all  costs 
recovered  by  the  plaintiff,  and  also  all  costs  of  his  co-defendant,  both  upon  the 
bill  and  in  an  action  at  law  between  the  claimants  upon  the  same  subject  matter. 

Certain  sums  were  due  from  the  plaintiffs,  to  the  owner  of 
certain  real  estate  for  rents  of  the  same.  The  title  being  in 
litigation,  the  plaintiffs  filed  bills  of  interpleader  against  the 
defendants,  De  Peyster  and  Yan  Rensselaer,  who  were  the 
adverse  claimants,  at  the  same  time  paying  into  court  the  rents, 
or  a  large  portion  of  them.  A  decree  was  entered  in  favor  of 
the  defendant,  De  Peyster,  and  adjudging  that  he  and  not  the 
co-defendant,  Van  Rensselaer,  was  entitled  to  the  rents,  and 
adjudged  the  plaintiffs  entitled  to  their  costs  in  this  suit,  and 
also  to  their  costs  in  several  suits  at  law  previously  brought 
against  them  by  the  defendant,  De  Peyster,  in  the  Supreme 
Court,  to  be  paid  out  of  the  fund  paid  into  court  on  filing  the 
bills. 

The  decision  of  the  court,  however,  upon  the  point  as  to 
which  defendant  should  be  ultimately  responsible  for  the  pay- 
ment of  the  plaintiff's  costs,  was  reserved,  in  order  that  evi- 
dence might  be  taken  as  to  whether  any  understanding  or 
arrangement  had  existed  between  the  co-defendants  relative  to 
the  enforcement  of  their  claims  against  the  plaintiffs.  Such 
an  arrangement  the  defendant,  Yan  Rensselaer,  had  alleged 
and  his  co-defendant  De  Peyster  denied. 

Evidence  upon  this  point  being  reported  by  the  referee 
which  failed  to  substantiate  the  alleged  understanding,  the 
following  opinion  was  rendered  by  the  court  on  the  question 
of  the  apportionment  of  the  costs. 

Cambridge  Livingston  for  defendant,  De  Peyster. 
Joseph  Blunt,  for  defendant  Yan  Rensselaer. 


NEW-YORK.  235 


Miller  a.  De  Peyster. — Anderson  a.  The  Same. 


BY  THE  COUKT.  HOFFMAN,  J. — By  a  decree  of  the  gen- 
eral term  of  this  court,  made  on  the  llth  of  October,  1852r 
it  was  declared  that  the  defendant,  Yan  Rensselaer,  had  no 
title  or  interest  in  the  funds  referred  to  in  the  pleadings ;  but 
that  the  same  belonged  exclusively  to  the  defendant,  De  Pey- 
ster, and  that  the  claim  set  up  by  defendant, Van  Rensselaer,  was 
totally  unfounded  and  untrue.  The  decree  declared  a  certain 
sum  to  be  due  from  the  plaintiff,  Miller,  to  the  defendant,  De 
Peyster,  for  rent,  and  certain  other  sums  from  the  other  plain- 
tiffs. A  large  part  of  the  moneys  so  decreed  to  be  due,  had 
been  paid  into  court  by  the  plaintiffs  upon  filing  their  bills. 
These  sums  were  adjudged  to  belong  to  De  Peyster,  and  the 
plaintiffs  ordered  to  pay  him  the  balance  respectively,  if  there 
should  remain  any  balances  after  payment  of  their  costs,  to 
which  the  decree  declared  them  entitled,  as  well  as  to  the 
costs  of  the  suit  instituted  against  them  by  the  defendant,  De 
Peyster,  in  the  Supreme  Court.  These  bills  were  bills'  of  inter- 
pleader, filed  by  the  respective  plaintiffs,  after  suit  at  law  com- 
menced against  them  by  De  Peyster,  and  by  reason  of  a 
claim  for  such  rents,  made  upon  the  parties  by  the  defendant,. 
Yan  Rensselaer. 

The  court  at  general  term  did  not  proceed  to  determine  tne 
question  of  costs  as  between  the  co-defendants  in  the  inter- 
pleader suits,  in  consequence  of  an  averment  that  an  arrange- 
ment had  existed  between  the  late  John  "Watts,  and  Yan 
Rensselaer,  and  also  between  Yan  Rensselaer  and  the  defend- 
ant, De  Peyster,  relating  to  the  enforcement  of  the  claims  for 
rent.  An  order  of  reference  was  made  to  inquire  into  the 
existence  and  extent  of  any  such  arrangement,  and  the  ques- 
tion of  costs  is  now  to  be  settled  upon  the  report  which  has 
been  made  upon  that  matter,  and  the  accompanying  evidence. 

The  defendant,  De  Peyster,  denies  in  his  answer  any  such 
agreement  as  is  alleged,  and  there  is  no  proof  whatever  to- 
establish  it  against  him. 

Evidence  is  adduced  to  shew  that  there  was  such  an  arrange- 
ment made  with  Mr.  Watts,  the  effect  of  which  would  be  that 
the  institution  of  such  suits  for  rent,  was  a  violation  of  a  con- 
tract between  Yan  Rensselaer  and  himself,  and  should  at  least 
exempt  the  latter  from  paying  costs.  This  testimony  consists 


236  ABBOTTS'  PEACTICE  REPORTS. 

Miller  a.  De  Peyster. — Anderson  a.  The  Same. 

of  several  letters  from  Mr.  Watts,  none  of  which  in  any  degree 
establish  the  allegation.  The  other  is  the  testimony  of  the 
highly  respectable  counsel,  who  can  only  speak  of  a  contem- 
plated arrangement  for  the  collection  of  the  rents  and  pay- 
ment into  the  Trust  Company,  which  he  allows  was  not  con- 
summated. There  is  also  some  unimportant  evidence  of 
Anthony  Pricker,  as  to  a  conversation  with  Mr.  Watts,  in 
which  he  was  told  by  the  latter  that  he  need  not  pay  any 
more  rent  till  the  matter  was  settled. 

It  should  be  observed  that  Mr.  Watts  died  in  1836,  and  the 
suits  in  question  were  not  commenced  until  the  year  1847. 

This  defendant  has  failed  in  proving  any  agreement  compe- 
tent to  vary  the  ordinary  rule  in  these  cases  as  to  costs. 

That  rule  is  well  settled,  and  renders  the  unsuccessful  claim- 
ant responsible  for  costs  in  all  cases  except  where  special  cir- 
cumstances have  induced  the  court  to  exercise  its  discretionary 
power  in*  his  favor.  (Richards  v.  Salter,  6  John.  Ch.  Rep. 
448,  and  cases  cited ;  also  Mason  v.  Hamilton,  1  Simons,  19). 

The  costs  allowed  under  these  decisions  are  undoubtedly  all 
the  successful  defendant's  costs  in  equity,  and  all  the  costs 
which  are  taken  by  the  plaintiff  in  the  interpleading  bills  both 
in*equity  and  at  law.  I  have  had  some  doubt  as  to  the  costs  of 
that  defendant  at  law,  and  these  were  not  given  in  Richards 
v.  Salter,  nor  apparently  in  Henary  v.  Key,  (Dickens,  291). 
But  it  was  done  in  the  well-considered  case  of  Dawson  v. 
Hardcastle,  (2  Cox,  277),  and  in  Mason  v.  Hamilton,  (1  Simons, 
19).  It  appears  to  be  the  reasonable  rule. 

The  order  will  be,  that  the  defendant  De  Peyster  recover 
from  the  defendant  Van  Rensselaer  all  the  costs  which  the 
plaintiff  shall  be  paid  or  retain  out  of  the  money  in  court,  or 
the  unpaid  balance  in  their  hands  respectively,  and  also  all  the 
costs  of  such  defendant  in  this  suit,  and  of  the  action  at  law 
commenced  by  him. 

The  order  will  be  drawn  by  the  defendant  Yan  Rensselaer's 
attorney,  and  submitted  for  settlement  upon  notice. 


NEW-YORK.  237 


Deuel  a.  Spence. 


DEUEL  a.  SPENCE. 

Court  of  Appeals  ;  December  Term,  1854. 
PLEA  OF  USURY. — VARIANCE. — ACCOMMODATION  INDORSEMENTS, 

The  provisions  of  the  Code  respecting  variance  between  pleadings  and  proofs  are 
applicable  to  the  defence  of  usury. 

Unless  the  proofs  of  usury  differ  from  the  answer  in  its  entire  scope  and  meaning, 
the  variance  will  be  deemed  immaterial  if  the  plaintiff  gives  HO  proof  that  he  was 
misled  to  his  prejudice. 

Testimony  going  to  show  usury,  but  at  a  different  rate  from  that  alleged  in  the 
pleadings  ;  held,  wrongfully  excluded. 

It  seems  that  it  is  no  misapplication  of  a  note  sufficient  to  discharge  an  accommo- 
dation indorser  that  the  note  is  discounted  or  pledged  by  the  maker  in  a  manner 
in  violation  of  the  understanding  had  with  the  indorser,  so  long  as  the  proceeds 
fairly  realized  are  not  misapplied. 

This  was  an  action  brought  in  the  Superior  Court  by  the 
plaintiff,  a  partner  in  the  late  firm  of  Buckley,  Jr.  &  Deuel, 
upon  two  promissory  notes  made  by  Sweet  &  Tibbs  *  and  in- 
dorsed by  Spence,  and  which,  upon  the  dissolution  of  the  part- 
nership, being  over  due  and  unpaid,  had  been  assigned  to 
Deuel  by  his  co-partner. 

The  defendant  Spence,  the  indorser,  averred  in  his  answer, 
"  that  the  notes  mentioned  in  the  complaint  were  indorsed  by 
this  defendant  without  any  consideration  therefor,  for  the 
benefit  of  and  to  enable  the  firm  of  Sweet  &  Tibbs  to  obtain  a 
loan  upon  one  of  them  only,  from  one  of  the  banks  at  which 
they  were  respectively  made  payable,  and  upon  the  agreement 
that  the  one  not  discounted  should  be  returned  to  this  defend- 
ant ;  and  in  case  neither  should  be  discounted,  both  should  be 
returned  to  the  defendant  or  destroyed.  That  said  Sweet  & 
Tibbs  failed  to  get  either  of  said  notes  discounted  at  either  of 
the  said  banks,  and  wholly  omitted  to  either  return  or  destroy 
said  notes  according  to  said  arrangement  and  agreement.  That 
instead  of  returning  or  destroying  the  same,  he  deposited  or 
delivered  the  said  note  for  $675  with  Buckley,  Jr.  &  Deuel,  of 
which  firm  the  plaintiff  at  the  maturity  of  said  note  was,  and 
defendant  believes  still  is,  a  member  thereof,  to  secure  an 


238  ABBOTTS'  PRACTICE  BEPORTS. 


Deuel  a.  Spence. 


antecedent  or  pre-existing  debt  previously  due  to  the  said 
Buckley,  Jr.  &  Deuel  for  about  $544,  for  a  usurious  loan  of 
that  amount  made  by  them  to  Sweet  &  Tibbs  at  the  rate  of 
one  per  cent  per  month,  or  more  than  the  legal  rate  of  interest 
allowed  by  law,  and  upon  the  understanding  that  said  Buckley 
Jr.  &  Deuel  should  forbear  and  give  twelve  or  fifteen  days 
further  time  of  payment  of  said  $544  at  the  rate  of  one  per 
cent  per  month  for  interest,  and  also  deposited  or  delivered 
said  note  of  $700  to  said  Buckley,  Jr.  &  Deuel  as  a  security 
for  a  loan  of  $675  then  and  there  loaned  by  them  to  said 
Sweet  &  Tibbs  upon  a  corrupt  and  unlawful  agreement,  that 
said  Buckley,  Jr.  &  Deuel  should  give  twenty  days  for  the 
payment  thereof,  and  take  and  reserve  for  the  use  or  forbear- 
ance of  said  sum  of  $675  interest  at  the  rate  of  one  per  cent 
per  month,  or  a  greater  sum  than  that  allowed  by  law  for  the 
use  or  forbearance  of  money.  That  before  or  at  the  time  of 
taking  said  note,  as  this  defendant  is  informed  and  believes, 
the  said  Buckley,  Jr.  &  Deuel  had  full  notice  of  the  object  for 
which  they  were  indorsed  by  this  defendant,  and  that  they 
were  indorsed  without  consideration,  and  notwithstanding  such 
knowledge  of  the  misapplication  and  want  of  consideration, 
took  the  said  notes  as  aforesaid." 

These  allegations  were  denied  by  the  reply. 

On  the  trial  the  counsel  for  defendant  offered  to  show  a 
general  agreement  between  Buckley  &  Deuel,  and  Sweet  & 
Tibbs,  as  to  ,the  amount  of  interest  to  be  paid  by  Sweet  & 
Tibbs,  and  received  by  Buckley  &  Deuel,  on  all  moneys  lent 
by  them  to  Sweet  &  Tibbs.  The  counsel  for  the  plaintiff  ob- 
jected to  the  testimony.  The  court  overruled  the  testimony, 
and  the  counsel  for  the  defendant  Spence  excepted. 

Upon  the  point  of  usury,  among  others,  the  court  charged 
the  jury  that  if  the  note  had  been  discounted,  or  money  ad- 
vanced upon  it  at  the  rate  of  one  per  cent  a  month,  as  the 
defence  set  up,  the  plaintiff  could  not  recover ;  but  that  unless 
it  was  proved  that  the  rate  was  to  be  one  per  cent  a  month, 
the  defendant  was  liable.  And  to  this  the  defendant's  counsel 
excepted. 

Verdict  was  found  for  the  plaintiff. 


NEW-YOKE.  239 


Deuel  a.  Spence. 


The  defendant's  motion  for  a  new  trial  was  denied  at  the 
general  term,  and  he  appealed. 

Elijah  Ward,  for  appellant. 
E.  L.  Fancher,  for  respondent. 

RUGGLES,  J. — On  the  trial  of  this  cause  the  defendant's 
counsel  requested  the  judge  to  charge  that  if  Spence  was  an 
accommodation  indorser,  and  the  notes  were  made  for  the 
purpose  of  having  one  or  both  of  them  discounted  at  one  or 
both  of  the  Newburgh  banks,  then  the  notes  were  diverted 
from  their  original  purpose,  and  that  the  plaintiff  was  not 
entitled  to  recover. 

The  judge  was  right  in  refusing  to  charge  according  to  this 
request.  According  to  the  testimony  of  Sweet,  the  notes  were 
drawn  to  enable  Sweet  &  Tibbs  to  raise  money,  and  there  is 
nothing  in  the  case  to  show  that  the  money  when  raised,  was 
to  be  applied  to  any  particular  purpose.  They  had  the  right 
to  apply  it  to  such  purpose  as  they  chose.  It  was  entirely 
immaterial  to  Spence  whether  the  notes  were  discounted  at  a 
bank  at  jSTewburgh,  or  by  an  individual  at  any  other  place. 
(Powell  v.  Waters,  17  Johnson,  176).  In  Brown  v.  Taber,  5 
Wend.  566,  the  note  was  indorsed  for  the  accommodation  of 
the  maker,  for  the  purpose  of  enabling  him  to  redeem  the 
property  of  one  of  his  neighbors  taken  in  execution.  It  was 
payable  at  a  bank  in  Albany,  offered  there  by  the  maker  for 
discount,  refused  and  returned  to  the  maker  with  the  bank 
marks  upon  it,  and  afterwards  applied  by  him  to  the  purchase 
of  lottery  tickets  at  an  exorbitant  price,  a  few  days  before  its 
maturity.  This  was  an  application  of  the  note  to  an  entirely 
different  purpose  from  that  for  which  it  was  made ;  and  under 
circumstances,  which  in  the  opinion  of  the  court,  were  suffi- 
cient to  charge  the  holder  with  notice  of  its  misapplication. 

In  the  present  case,  if  the  note  was  fairly  discounted  by 
Buckley  &  Deuel,  whether  for  money  paid  at  the  time,  or 
for  a  precedent  debt,  Dtiere  was  neither  fraud  nor  misappli- 
cation of  the  note.  If  the  note  had  been  discounted  at  New- 
burgh,  Sweet  &  Tibbs  might  rightfully  have  applied  the 
money  to  the  payment  of  their  check  held  by  Buckley  & 


240  ABBOTTS'  PRACTICE  KEPORTS. 

Deuel  a.  Spence. 

Deuel,  and  they  did  no  wrong  to  the  indorser  in  paying  the 
note  to  that  firm  for  that  purpose. 

Nor  can  I  perceive  how  Buckley  &  Deuel's  knowledge  of 
the  original  intention  to  have  the  notes  discounted  at  one  of 
the  banks  of  Newburgh  could  make  any  difference  in  the  case 
so  long  as  Sweet  &  Tibbs  were  at  liberty  consistently  with 
their  duty  to  their  indorsers  to  apply  the  proceeds  of  the  notes 
to  the  payment  of  their  debt  to  Buckley  &  Deuel.  In  the 
Seneca  County  Bank  v.  Neass,  (3  Comst.  442),  it  was  decided 
that  when  a  note  was  indorsed  for  the  accommodation  of  the 
maker  without  any  restriction  as  to  the  particular  purpose  to 
which  it  should  be  applied,  the  maker  had  a  right  to  appro- 
priate it  to  any  purpose  which  he  might  deem  for  his  own 
interest,  and  he  having  appropriated  it  to  the  payment  of  a 
note,  held  by  the  plaintiffs  against  him,  the  consideration  was 
declared  to  be  sufficient  to  render  it  valid  in  their  hands.  The 
holder  in  that  case  and  under  those  circumstances  recovered 
against  the  accommodation  indorser. 

We  think  there  was  no  error  in  any  part  of  the  charge  of 
the  judge  for  which  the  judgment  can  be  reversed,  except  in 
what  he  said  in  regard  to  the  question  of  usury. 

In  the  course  of  the  trial  for  the  purpose  of  showing  the 
transaction  usurious,  the  defendant's  counsel  offered  to  show  a 
general  agreement  between  the  firm  of  Buckley  &  Deuel, 
and  the  firm  of  Sweet  &  Tibbs,  as  to  the  amount  of  interest 
to  be  paid  by  the  latter  firm  for  moneys  borrowed  of  the 
former.  This  evidence  was  objected  to  and  excluded,  and  an 
exception  taken  to  the  decision.  And  the  judge  charged  the 
jury  that  the  usury  must  be  proved  to  have  been  taken  at  the 
rate  of  one  per  cent  a  month,  as  set  up  in  the  answer,  and 
that  if  not  so  proved,  the  defendant  was  liable  on  the  $700 
note. 

The  evidence  of  the  agreement  as  to  the  rate  of  interest  was 
probably  rejected  on  the  ground  that  the  offer  did  not  specify 
that  the  rate  of  interest  agreed  on,  was  the  same  as  that  stated 
in  the  answer.  "We  think  the  proof  Offered  was  erroneously 
excluded  ;  and  that  there  was  error  in  the  part  of  the  charge 
last  referred  to. 

In  Catlin  v.  Gunter,  (1  Kernan^  368),  decided  at  the  last  Sep- 


NEW-YOKE.  241 


Ely  a.  Miller. 


tember  term,  it  was  held  that  the  provisions  of  the  Code  of 
Procedure  on  the  subject  of  a  variance  between  the  pleading 
and  proofs,  are  applicable  to  cases  in  which  usury  is  set  up  as 
a  defence  ;  and  that  a  variance  between  the  answer  and  the 
proof  in  such  a  case  should  be  deemed  immaterial,  unless  the 
proof  differed  from  the  answer  in  its  entire  scope  and  mean- 
ing, if  the  plaintiff  gave  no  proof  that  he  was  misled  to 
his  prejudice.  According  to  this  case  a  variance  as  to  the 
rate  of  interest  merely,  should,  we  think,  have  been  disre- 
garded at  the  trial.  The  evidence  offered  should  have  been 
admitted,  and  the  jury  instructed  in  conformity  with  the  rule 
adopted  in  that  decision. 

The  judgment  below  must  be  reversed,  and  a  new  trial 
directed,  with  costs  to  abide  the  event  of  the  suit. 


ELY  a.  MILLER 

Supreme  Court,  First  District ;  Special  Term,  January,  1855. 
PLEA  OF  USURY. — EXAMINATION  OF  PARTIES. 

Under  the  Code  a  defendant  cannot  be  examined  by  his  co-defendant  to  establish 
usury  as  a  defence  to  their  joint  promissory  note. 

Application  for  a  commission  to  take  testimony. 

This  was  an  action  against  two  defendants,  Miller  and  Reed, 
as  makers  of  a  promissory  note.  The  defence  was  usury.  The 
defendant  Reed  applied  for  a  commission  to  examine  his  co- 
defendant,  Miller. 

ROOSEVELT,  J. — The  law  at  present  in  England  allows  par- 
ties to  a  suit  to  testify  in  their  own  favor,  leaving  the  question 
of  credibility,  under  a  full  view  of  all  the  circumstances,  to  the 
determination  of  the  jury.  We  have  high  authority  for  saying 
—notwithstanding  the  confident  predictions  of  the  foreboders 
of  evil — that  in  the  courts  of  that  country  the  change  in  prac- 
tice works  well.  Indeed,  it  always  seemed — and  in  this  state 
still  seems — a  strange  anomaly,  that  while  on  the  most  impor- 
tant motions  as  they  are  technically  called,  the  parties  should 
16 


242  ABBOTTS'  PRACTICE  REPORTS. 

Ely  a.  Miller. 

not  only  be,  as  from  time  immemorial  they  have  been,  allowed 
to  testify  in  their  own  favor,  and  on  paper  too,  and  without 
cross-examination,  yet  under  the  same  system  of  jurisprudence 
on  what  are  technically  denominated  trials,  the  same  witness, 
although  offered  to  the  same  points,  with  the  additional  advan- 
tage of  an  oral  and  face-to-face  cross-examination  in  open 
court,  should  be  excluded.  Such,  nevertheless,  is  still  the  law 
in  this  state.  Efforts  have  been  made  to  change  it,  and  to 
remove  the  manifest  contradiction  alluded  to ;  but  thus  far 
without  success.  All  that  our  legislature  as  yet  has  been 
willing  to  do,  has  been  to  allow  one  party  to  call  his  opponent, 
and,  in  certain  cases,  one  opponent  to  call  another.  And 
the  question  presented  on  the  application  now  made  is :  Can 
one  of  two  joint  makers  of  a  promissory  note,  sued  jointly  as 
such,  be  a  witness  for  his  colleague  ? 

One  defendant,  says  the  Code,  section  397,  may  be  examined 
on  behalf  of  his  co-defendant  as  to  any  matter  in  which  he  is 
not  jointly  liable  or  jointly  interested,  and  as  to  which  a  sepa- 
rate and  not  joint  verdict  or  judgment  can  be  rendered.  Now 
what,  under  the  commission  applied  for  by  Reed,  is  the  "  mat- 
ter" as  to  which  he  seeks  to  examine  his  co-debtor  Miller? 
The  defence,  and  the  only  defence  is  usury.  And  is  not  Miller 
"jointly  interested"  with  Reed  in  this  "matter?"  If  the 
usury  be  established  by  his  testimony,  does  he  not  necessarily 
prevent  any  judgment  against  either  defendant  ?  Does  he  not, 
in  effect,  destroy  the  note  on  which  he  would  otherwise  be 
"liable  jointly  with  his  co-defendant?"  The  note,  it  is  said, 
is  both  joint  and  several.  Is  not  that  an  option  invested, 
not  for  the  benefit  of  the  makers,  but  of  the  payees  ?  The 
plaintiffs,  no  doubt,  might  have  sued  Reed  alone  ;  but  they 
were  not  bound  to  do  so.  They  have  elected — and  they  had  a 
right  to  elect — to  sue  on  the  joint  promise,  and  to  ask  for  a 
joint  judgment — a  judgment  which,  when  entered,  will  bind 
all  the  joint  property  and  merge  the  entire  contract,  and  pre- 
vent any  separate  action  afterwards  against  Miller,  although 
he  may  not  have  been  served  with  a  summons  in  this  :  and 
which,  even  as  to  his  separate  property,  although  open  to  other 
defences,  will  forever  preclude  any  defence  of  the  statute  of 
limitations.  (Code,  section  379).  The  plaintiffs,  I  have  said, 


NEW-YORK.  243 


Smith  a.  Wright. 


can  have  no  separate  judgment  in  this  action.  This  action  is 
not  brought  on  the  several,  but  on  the  joint  promise,  and  on 
that  alone.  But  to  prevent  all  doubt,  the  plaintiffs  have  stipu- 
lated— although  the  form  of  their  complaint  would  seem  to 
render  any  stipulation  superfluous — to  ask  no  judgment  unless 
against  both.  If,  then,  the  defendant,  Miller,  should,  by  his 
own  testimony,  establish  the  defence  of  usury,  he  by  his  own 
testimony  defeats  the  action  altogether.  To  say  that  he  is  not 
"jointly  interested"  with  Reed  in  such  a  result,  stating  the 
law  as  above  explained,  is  a  manifest  absurdity.  For  although 
there  may  be  no  joint  property  at  present,  there  may  be  joint 
property  hereafter  ;  and,  at  all  events,  the  statute  of  limitations 
is  a  sufficient  consideration  to  create  an  interest  "in  the 
matter."  But  that  is  not  all ;  a  judgment  of  dismissal  in  this 
action,  on  the  ground  of  usury,  would,  as  res  adjudicata,  be  a 
•complete  bar  to  any  action  hereafter,  either  joint  or  several,  on 
this  same  note,  against  Miller.  To  admit  him  to  swear  at  all, 
therefore,  is  to  admit  him  to  swear  for  himself.  And,  conse- 
quently, until  the  legislature  shall  otherwise  provide,  the  pres- 
ent application,  and  all  other  applications  of  like  character, 
must  be  denied. 


SMITH  a.  WRIGHT. 

Court  of  Appeals ',  December  Term,  1854. 
ALLEGATION  OF  TENDER. — PARTNERSHIP. 

In  a  suit  for  damages  on  the  breach  of  a  contract,  the  complaint  is  defective  unless 
it  alleges  an  offer  or  tender  of  performance  on  the  part  of  the  plaintiff. 

Two  mercantile  firms  mutually  agreed  each  to  put  out  contracts  for  sale  and 
delivery  of  produce  at  future  days,  all  profits  of  such  adventures  and  all  losses  to 
be  equally  divided  between  the  firms  -, — held  that  the  one  firm  were  liable  as 
partners  upon  a  contract  made  accordingly,  and  signed  by  the  other  firm. 

This  action  was  brought  in  the  Superior  Court.  The  com- 
plaint alleged  that  the  defendants,  Wright  and  Losee,  com- 
posing the  firm  of  Wright  &  Losee,  and  the  defendants,  Otis 
&  Glover,  composing  the  firm  of  A.  W.  Otis  &  Co.,  mutually 
agreed  to  make  contracts  in  the  name  of  their  respective  firms, 
for  the  delivery  of  produce  at  a  future  day,  with  a  view  to 


244:  ABBOTTS'  PRACTICE  REPORTS. 


Smith  a.  Wright. 


realize  an  expected  rise  in  prices  ;  such  contracts  to  be  for  the 
joint  account  and  benefit,  and  both  profits  and  losses  resulting 
from  such  adventures  to  be  equally  divided.  The  contract 
upon  which  this  suit  was  brought,  was  made  in  pursuance  of 
this  agreement,  by  the  firm  of  Otis  &  Co.  It  was  a  written 
contract  to  deliver  to  Collomb  &  Iselin  two  thousand  barrels 
of  flour.  It  was  signed  A.  "W.  Otis  &  Co.  The  complaint 
further  alleges  that  when  the  flour  became  deliverable,  accord- 
ing to  the  terms  of  the  contract,  the  contract  was  held  by  E. 
&  W.  Herrick ;  but  that  Otis  &  Co.  did  not  deliver  the  same 
or  any  part  thereof,  although  requested  so  to  do  by  the  said  E. 
&  W.  Herrick,  and  although  the  said  E.  &  W.  Herrick  were 
ready  and  willing  to  accept  and  receive  the  same,  and  to  pay 
for  the  same,  at  the  rate  or  price  aforesaid ;  nor  did  the  said 
defendants,  Wright  &  Losee,  deliver  the  same  or  any  part 
thereof ;  but  the  said  defendants  wholly  neglected  and  refused 
to  deliver  the  same  or  any  part  thereof. 

Subsequently  Smith,  the  plaintiff,  became  by  assignment 
the  owner  of  the  contract,  and  brought  suit  upon  it.  The 
defendants,  Wright  &  Losee,  demurred,  that  the  contract  being 
signed  by  Otis  &  Co.,  was  not  sufficient  to  Charge  Wright  & 
Losee,  and  that  it  did  not  appear  that  any  demand  of  the  flour 
or  any  tender  of  the  price  had  been  made. 

Judgment  being  given  at  special  term,  for  the  plaintiff  on 
the  demurrer,  the  defendant  appealed,  and  at  the  general  term 
that  judgment  was  reversed.  The  opinion  delivered  at  the 
general  term,  (5  Sandf.  113),  considered  only  the  first  ground 
of  the  demurrer,  and  held  that  as  the  plaintiff  had  failed  to 
show  that  the  contract  in  question  was  subscribed  by  Wright 
&  Losee,  it  could  not  therefore  be  enforced  against  them. 
Judgment  being  entered  thereupon  for  the  defendants,  the 
plaintiff  appealed. 

F.  H.  Rodman,  for  the  plaintiff. 
B.  W.  Bonney,  for  the  defendant. 

EDWARDS,  J. — The  complaints  in  the  action  alleges  that  the 
defendants,  Wright  &  Losee,  then  composing  the  firm  of 
Wright  &  Losee,  and  the  defendants,  Otis  &  Glover,  composing 


NEW-YOKE.  245 


Smith  a.  Wright. 


the  firm  of  A.  W.  Otis  &  Co.,  mutually  agreed  to  make  con- 
tracts, or  agreements,  in  the  names  of  their  respective  firms, 
with  divers  persons  for  the  sale  and  delivery  of  flour  and  other 
produce,  at  a  future  day,  with  a  view  to  realize  the  rise  or 
increase  in  the  prices  of  produce  which  they  then  anticipated 
would  take  place  in  the  market,  and  upon  the  express  agree- 
ment that  such  contracts  should  be  made  for  the  joint  account 
and  benefit  of  said  two  firms,  and  that  the  profits  resulting 
therefrom  should  be  equally  divided  between  them,  and  the 
losses,  if  any.  should  be  borne  by  the  said  two  firms,  in  equal 
proportions.  The  complaint  further  alleges  that  in  pursuance 
of  this  agreement,  the  firm  of  Otis  &  Co.,  for  the  joint  benefit 
and  account  of  the  two  firms,  entered  into  a  contract  in  writing 
with  the  firm  of  Collomb  '&  Iselin,  which  contract  is  particu- 
larly set  forth.  This  contract,  after  passing  through  several 
hands,  was  finally  assigned  to  the  plaintiffs.  To  this  complaint 
the  defendants,  Wright  &  Losee,  demurred.  The  first  question 
which  is  presented,  is  whether  the  agreement  which  is  set 
forth  in  the  complaint,  created  a  partnership. 

The  well  established  rule  is,  that  if  a  person  partakes  of  the 
profits  of  any  branch  of  trade  or  business,  he  is  answerable  as 
a  partner  for  the  losses.  The  reason  of  this  is,  that  if  he  takes 
a  part  of  the  profits,  he  takes  from  the  creditors  a  part  of  the 
fund  which  is  the  proper  security  for  the  payment  of  their 
debts.  (Grace  v.  Smith,  2  W.  Black.,  998 ;  Dob  <o.  Halsey,  16 
John.  34;  3  Kent,  27).  The  only  qualification  of  this  rule 
which  has  ever  been  acknowledged  is,  that  when  a  person 
stipulates  to  receive  a  sum  of  money  in  proportion  to  a  given 
quantity  of  the  profits,  as  a  reward  for  his  services,  he  is  not 
chargeable  as  a  partner.  (Story  on  Part.,  32,  33,  34,  45, 
and  authorities  cited  in  note.  Gary  8,  9,  10,  11.  Gow.  14, 
19.  Collyer  14,  15  &  Seq.}  And  the  propriety  of  even  this 
qualification  was  doubted  by  Ld.  Eldon.  (Exparte  Hamper, 
IT  Yes.  401).  In  the  present  case,  according  to  the  terms  of 
agreement  between  the  defendants,  the  business  was  to  be 
carried  on  for  their  joint  account  and  benefit,  and  not  only 
were  the  profits  arising  therefrom  to  be  shared  between  them, 
but  the  losses  were  also  to  be  borne  by  them  in  equal  propor- 
tions. There  is  nothing  in  the  agreement  which  in  the  least 


246  ABBOTTS'  PRACTICE  REPORTS. 

Smith  a.  Wright. 

degree  indicates  that  the  shares  of  any  of  the  parties  were  to- 
be  received  as  a  compensation  for  services  rendered.  In  the 
case  of  Champion  v.  Bostwick,  (11  Wend.  571,  £  C.  in  error, 
18  Wend.  175),  it  was  shown  that  three  persons  ran  a  line  of 
stage-coaches  from  Utica  to  Rochester,  the  route  being  divided 
between  them  into  three  sections,  the  occupant  of  each  section 
furnishing  his  own  carriages,  horses,  and  drivers,  and  paying 
the  expenses  of  his  own  section  ;  but  the  money  received,  as 
fare  of  passengers,  deducting  therefrom  only  the  tolls  paid  at 
turnpike  gates,  was  divided  amongst  the  parties  in  proportion 
to  the  number  of  miles  ran  by  each.  Upon  this  state  of  facts, 
it  was  held  that  they  were  jointly  liable  as  copartners  to  a  third 
person,  not  a  passenger,  for  an  injury  received  through  the 
negligence  of  the  driver  of  the  coach  of  one  of  them.  In  the 
case  of  Everitt  v.  Chapman,  (6  Conn.  347),  the  parties  had 
agreed  that  each  one  should  purchase  hides  on  his  own  credit, 
and  should  manufacture  and  sell  the  portion  so  manufactured 
by  him,  each  party  to  participate  in  the  profits.  It  was  held 
that  all  the  parties  were  liable  as  copartners  to  a  third  person, 
who  sold  hides  to  one  of  the  parties,  in  ignorance  of  the  part- 
nership, and  charged  the  same  to  him. 

These  cases  have  introduced  no  new  principle,  and  I  have 
alluded  to  them  merely  because  they  are  in  many  respects 
similar  to  the  one  before  us.  The  fact  that  the  agreement  in 
question  was  made  between  two  firms  already  in  existence, 
can  make  no  difference  as  to  the  liability  of  the  parties,  for, 
as  far  as  the  agreement  is  concerned,  the  two  firms  stand 
upon  the  same  footing  as  two  individuals  would.  Neither 
can  it  make  any  difference  that  the  contract  which  is  now 
sought  to  be  enforced,  as  the  joint  contract  of  the  parties,  was 
made  in  the  partnership  name  of  one  of  the  firms,  for  the 
partnership  agreement  between  the  defendants  authorized 
such  a  contract.  (Wright  v.  Hooker,  Seld.  not  yet  reported  ; . 
Everitt  v.  Chapman,  ubi  sup).  The  court  below,  in  giving  their 
opinion,  say  that  "  the  ground  upon  which  a  participation  in 
the  profits  of  a  trade  is  held  to  make  parties  liable  to  third 
persons,  though  they  never  intended  to  be  parties  between 
themselves,  as  it  was  advanced  by  De  Grey,  Ch.  J.,  in  Grace  v. 
Smith,  and  was  adopted  in  Dob  v.  Halsey,  is  entirely  wanting 


NEW-YORK. 


Smith  a.  Wright. 


in  this  case.  Here  Wright  and  Losee  could  not  take  any  of 
the  fund  on  which  the  creditors  of  Otis  &  Co.,  relied  for  pay- 
ment." If  the  court  mean  that  "Wright  and  Losee  could  not 
take  any  of  the  fund  which  constituted  the  capital  stock 
employed  in  the  separate  business  of  Otis  &  Co.,  or  the  profits 
arising  therefrom,  or  that  Wright  and  Losee  could  not  take 
any  of  the  fund  employed  in  their  joint  business,  except  so  far 
as  it  constituted  the*  profits  arising  from  such  business,  the 
remark  is  correct,  although  it  is  not  apparent  how  that  can 
have  any  bearing  upon  the  question  before  us.  But  if  the 
court  mean  that  the  interest  which  "Wright  and  Losee  had  in 
the  profits  of  that  business  which  was  carried  on  under  the 
agreement  with  Otis  &  Co.,  did  not  give  them  a  right  to  take 
any  part  of  the  fund  upon  which  the  creditors  in  respect  to 
such  business  relied,  the  remark  is  founded  upon  an  entire 
misconception  of  the  general  rule,  and  of  the  decision  referred 
to  ;  for  Ch.  J.  De  Grey  expressly  says  that,  "  if  any  one  takes 
part  of  the  profits,  he  takes  a  part  of  that  fund  on  which  the 
creditor  relies  'for  payment."  All  interest  which  is  necessary 
to  constitute  a  partnership  is  an  interest  in  the  profits,  and 
such  an  interest  necessarily  constitutes  a  partnership,  unless,  as 
has  been  stated,  the  interest  in  the  profits  is  given  as  a  com- 
pensation for  services.  The  error  into  which  the  court  below 
have  fallen,  is  in  confounding  a  community  of  interest  in  the 
property  out  of  which  the  profits  are  to  arise,  with  a  com- 
munity of  interest  in  the  profits  themselves.  The  latter  is  all 
that  has  ever  been  considered  necessary  to  create  a  partner- 
ship as  against  a  third  person.  Whether  the  defendants  were 
partners  as  between  themselves,  it  is  not  necessary  to  inquire. 
They  were  so  in  reference  to  third  persons,  and  the  court 
below  erred  in  coming  to  a  different  conclusion. 

But  although  there  is  sufficient  allegation  of  a  copart- 
nership, still  I  think  that  the  complaint  is  defective  in  not 
alleging  a  performance,  or,  what  is  regarded  as  equivalent, 
an  offer  or  a  tender  of  performance  on  the  part  of  the 
plaintiff,  or  those  through  whom  he  claims.  The  contract 
in  suit  was  for  the  sale  of  flour,  at  a  price  agreed  upon.  The 
payment  of  the  price  was  the  consideration  for  the 
delivery.  The  payment  and  delivery  were  to  be  concur- 


248  ABBOTTS'  PKACTICE  REPORTS. 

Hyde  a.  Patterson. 

rent  acts,  and  as  was  recently  held  by  this  court  in 
the  case  of  Lester  v.  Jewett,  (1  Reman),  neither  party  is 
entitled  to  recover  from  the  other  without  alleging  an  offer  or 
tender  of  performance  on  his  part.  I  think  that  for  the 
reason  last  stated,  the  complaint  is  defective,  and  that  the 
judgment  should  be  affirmed. 


HYDE  a.  PATTERSON. 
Supreme  Court,  First  District ;  Special  Term,  January,  1855. 

In  proceedings  for  the  claim  and  delivery  of  personal  property,  a  general  appear- 
ance by  defendants,  is  a  waiver  of  any  irregularity  in  the  affidavits  on  which  the 
requisition  is  founded. 

An  undertaking  dated  the  12th,  recited  an  affidavit  then  made  by  plaintiff;  the  only 
affidavit  in  the  suit  was  made  on  the  13th,  by  a  person  not  plaintiff.  Held  the. 
undertaking  good. 

Motion  to  vacate  proceedings  for  the  claim  and  delivery  of 
personal  property. 

This  was  a  proceeding  under  section  206,  et  seq.,  of  the  Code, 
for  the  claim  and  delivery  of  personal  property.  The  affidavit 
on  which  the  requisition  was  granted,  was  made  by  Allen  W. 
Smith,  as  agent  of  the  plaintiffs.  This  affidavit  alleged  that 
the  plaintiffs  were  the  owners  of  the  property  claimed ;  that  it 
was  wrongfully  detained  by  the  defendants,  and  contained  a 
description  of  the  property  and  a  statement,  on  information 
and  belief,  of  the  defendant's  claim  thereto.  But  it  did  not 
state  any  facts  showing  ownership  in  the  plaintiffs,  nor  did  it 
state  the  actual  value  of  the  property  claimed. 

The  undertaking  erroneously  recited  that  an  affidavit  had 
been  made  by  one  of  the  plaintiffs,  while  the  only  affidavit  in 
the  suit  was  that  above  mentioned,  made  by  Allen  "W".  Smith, 
who  was  not  a  party.  The  undertaking  was  dated  the  12th  of 
December,  and  the  affidavit  the  13th. 

After  the  property  was  taken,  the  defendants  excepted  to 
the  sufficiency  of  the  sureties,  and  the  sureties  justified,  plain- 
tiffs making  no  appearance  on  the  justification.  Defendants 
then  on  the  23d  December,  gave  notice  of  this  motion  to  vacate 


NEW-YORK.  249 


Hyde  a.  Patterson. 


proceedings,  and  on  the  3d  day  of  January,  but  before  the 
notice  was  argued,  gave  a  general  notice  of  appearance. 

E.  P.  Brooks,  for  the  motion. 

First. — The  affidavit  is  insufficient. 

I.  It  is  not  made  by  either  of  the  plaintiffs,  but  by  a  third 
party,  who  does  not  state  his  means  of  knowledge. 

II.  It  does  not  state  facts  tending  to  show  ownership  by  the 
plaintiffs  or  unlawful   detainer  by  the  defendants.     A   mere 
bare  allegation  by  a  third  party  of  such  ownership  and  detainer, 
is  insufficient. 

Second. — The  undertaking  is  defective.  It  is  made,  dated 
and  acknowledged  the  12th  day  of  December,  at  New  York, 
and  recited  that  an  affidavit  has  been  made  by  the  plaintiff. 

The  affidavit  upon  which  the  property  has  been  taken,  is 
made  and  dated  the  13th  day  of  December,  in  Chemung  county, 
by  a  person  not  a  plaintiff,  and  not  referred  to  in  the  under- 
taking. 

The  undertaking  therefore  does  not  refer  to  the  affidavit 
used,  or  correspond  therewith  in  any  respect. 

William  E.  Curtis,  opposed. 

I.  The  defendants  by  appearing  generally  in  the  action,  have 
waived  any  irregularity  in  the  affidavit.     (Roberts  v.  Willard, 
1  Code  R.,  100). 

II.  By  requiring  plaintiff's  sureties  to  justify,  they  lose  any 
right  to  make  any  motion  on    the    ground  of    irregularity. 
(Whittaker's  Pr.,  670;  1  BurriWs  Pr.,  367). 

III.  The  mere  mis-recital  of  a  matter  not  necessary  to  be 
recited,  does  not  effect  the    liability  of  the  sureties   in  the 
undertaking.     (Oonklin  v.  Dutcher,  5  How.  Pr.  R.,  388). 

IY.  The  court  will  allow  a  new  replevin  bond  to  be  filed 
nuncpro  tune,  where  the  one  given  on  the  execution  of  the 
writ  is  defective.  (Newland  v.  Willetts,  1  Bwrb.  8.  C.  R.,  20; 
1  Hill,  204 ;  19  Wend.,  632  ;  Wilson  v.  Allen,  3  How.  Pr.  R., 
369  ;  Burns  v.  Robbins,  1  Code  R.,  62). 

E.  P.  Brooks,  contra.     The  general  appearance  does  not 


250  ABBOTTS'  PRACTICE  REPORTS. 

The  N.  Y.  Life  Ins.  Co.  a.  The  Board  of  Supervisors  of  the  City  of  New  York. 

affect  this  motion — for  it  has  been  made  since  the  notice  of 
this  motion. 

Nor  is  it  in  any  case  a  waiver.  For  this  proceeding  may  be 
taken  at  any  time  before  answer.  Defendants  may  have 
appeared  and  demanded  copy  of  the  complaint  before  any 
proceeding  of  this  sort  were  taken.  Such  an  appearance  could 
not  oust  them  of  their  right. 

CLERKE,  J. — The  general  unconditional  appearance  of  defend- 
ants, is  a  waiver  of  any  irregularity  in  the  affidavit. 

The  mistake  in  the  recital  of  the  bond,  does  not  affect  its 
validity.  The  essential  part  of  the  undertaking,  and  all  that  is 
required  by  the  Code,  is  contained  in  the  instrument  fn  this 
case.  It  makes  the  sureties  liable  for  the  prosecution  of  the 
action,  the  return  of  the  property,  if  return  be  adjudged,  and 
the  payment  of  the  costs.  And  quaere  whether  the  sureties 
would  not  be  estopped  from  denying  the  truth  of  the  recital  I 

Motion  denied,  with  costs. 


THE  NEW  YORK  LIFE  INSURANCE  CO.  a.  THE  BOARD  OF 
SUPERVISORS  OF  THE  CITY  OF  NEW  YORK. 

New  York  Superior  Court ;  General  Term,  January,  1855. 
'  ILLEGAL  TAXATION. — DENIAL  OF  INJUNCTION. 

An  injunction  will  not  be   granted  to  restrain  the  collection  of  a  tax  illegally 
imposed. 

Application  for  an  injunction. 

The  complaint  set  forth  that  the  plaintiffs  had  been  taxed 
upon  two  hundred  and  fifty  thousand  dollars  for  the  year 
1852,  by  the  defendants  the  Board  of  Supervisors  of  the  City 
of  New  York,  whereas  they  could  only  rightfully  be  taxed 
upon  one  hundred  thousand :  and  that  the  other  defendant, 
Harvey  Hart,  receiver  of  taxes,  was  proceeding  to  enforce  the 
illegal  tax :  and  prayed  the  judgment  of  the  court  upon  the 
facts  set  forth,  that  the  plaintiffs  were  not  liable  to  pay  taxes 
upon  any  amount  greater  than  one  hundred  thousand :  and  an 


NEW-YORK.  251 


The  N.  Y.  Life  Ins.  Co.  a.  The  Board  of  Supervisors  of  the  City  of  New  York. 

injunction  to  restrain  the  defendants  from  collecting  more. 

The  defendants  demurred  to  the  complaint. 

The  demurrer  was  argued  before  Mr.  Justice  Hoffman; 
who  overruled  it  and  rendered  judgment  for  the  plaintiffs  as 
prayed.  After  an  elaborate  discussion  of  the  merits,  he  thus 
concluded:  "The  next  point  raised  by  the  demurrer  is  a 
denial  of  the  jurisdiction  of  the  court.  It  is  insisted  that  this 
court  cannot  by  injunction,  interfere  with  the  proceedings 
taken  under  the  decision  of  a  subordinate  tribunal,  acting, 
under  a  statute,  and  clothed  with  the  exercise  of  political 
powers. 

An  opinion  of  Mr.  Justice  Duer,  in  the  case  of  Douglas"  v. 
The  Mayor,  &c.,  has  been  laid  before  me ;  the  facts  of  the 
case  are  not  stated,  but  it  is  apparently  hostile  to  the  juris- 
diction. 

Justice  Roosevelt,  whose  long  practical  experience  and 
learning  upon  this  subject  give  great  weight  even  to  a  special 
term  opinion,  treats  the  Bureau  of  Assessment  as  exercising  a 
quasi-judicial  power,  and  being  a  court  of  special  jurisdiction. 
(Thwing  v.  The  Mayor,  Aldermen,  &c.  Special  term,  1854). 
The  complaint  was  there  dismissed,  and  a  preliminary  injunc- 
tion dissolved. 

The  case  was  one,  however,  of  gross  neglect  of  the  oppor- 
tunities to  make  objections  provided  by  the  law. 

Justice  Emmett,  also,  in  the  case  of  The  Trustees  of  the 
N.  Y.  Society  Library  v.  Mayor,  &c.,  refused  an  injunction 
and  dismissed  a  complaint,  which  was  to  restrain  the  enforce- 
ment of  payment  of  taxes  assessed  upon  the  property  of  plain- 
tiffs. He  expressed  the  opinion  that  the  property  was  exempt, 
but  decided  the  cause,  upon  the  cases  of  The  Mayor  of  Brook- 
lyn v.  Meserole,  (20  Wend.  132),  and  Yan  Doren  v.  The 
Mayor,  &c.  (9  Paige,  388),  cited  also  by  Justice  Duer,  in  the 
case  before  mentioned. 

It  is  difficult,  perhaps  impossible,  to  resist  these  authorities  ; 
and  if  there  was  nothing  in  the  Code  to  excuse  an  implicit 
submission  to  them,  I  should  allow  the  demurrer  at  once. 
But  the  new  system  does,  I  think,  warrant  me  in  saying  that 
a  doubt  may  exist  upon  the  question  yet.  The  same  court 
now  administers  the  law  upon  all  the  united  principles  of 


ABBOTTS'  PRACTICE  REPORTS. 


The  N.  Y.  Life  Ins.  Co.  a.  The  Board  of  Supervisors  of  the  City  of  New  York. 

equity  and  law.  If  this  case  was  before  me  upon  an  action  to 
recover  back  the  money  paid  under  legal  compulsion,  or  upon 
an  action  against  an  officer  for  seizing  upon  property  to 
enforce  the  tax,  I  should  decide  that  the  money  should  be 
restored.  The  judges  at  general  term,  if  they  agreed  in  the 
opinion  as  to  the  law,  would  order  such  repayment.  It  does 
seem  difficult  to  reconcile  it  to  common  sense  to  say,  why  the 
party  aggrieved  by  an  error  in  law,  may  not  in  the  same  court 
on  the  same  facts  be  protected  from  paying  money  as  well  as 
entitled  to  recover  it  when  paid. 

The  case  of  Gardner  v.  Lee's  Bank,  (11  JBarbour,  567),  and 
some  other  cases,  are  hostile  in  principle  to  this  view.  The 
view  of  Justice  Edmonds  in  Cure  v.  Crawford,  (1  Code  R.  18), 
favors  it. 

It  is  a  question  not  so  fully  decided  by  the  judgment  of  the 
general  term  of  this  court,  or  by  that  of  any  higher  authority 
as  to  preclude  me  from  acting  upon  an  inclination  of  opinion 
and  nothing  more,  that  an  injunction  may  in  this  case  be  sus- 
tained. I  shall  be  glad  if  the  subject  is  brought  before  the 
general  term  for  a  deliberate  consideration  which  may  govern 
ourselves  at  least  upon  a  point  of  signal  importance,  and  far 
reaching  consequences. 

The  demurrer  will  be  overruled,  and  judgment  entered  for 
the  plaintiffs  without  costs. 

From  this  decision  the  defendants  appealed  to  the  general 
term. 

J.'  Miller  )  for  the  plaintiffs. 
R.  J.  Dillon,  for  defendants. 

DTTER,  J.  —  (Orally.)  —  After  stating  the  facts  in  the  case. 

It  has  not  been  contended  that  previous  to  the  enactment  of 
the  Code,  this  Court  would  have  had  jurisdiction  to  restrain 
the  collection  of  such  a  tax.  This  has  been  decided  in  several 
cases.  The  case  of  Moses  v.  Smedley,  (6  Johns.  Ch.  R.  28), 
though  differing  in  circumstances,  involved  this  principle  ;  and 
it  was  there  held  that  a  court  of  equity  could  not  interfere  by 
injunction  to  prevent  the  collection  of  a  tax  assessed  by  the 
Board  of  Supervisors.  The  chancellor  in  that  case  dismissed 


NEW-YORK.  253 


The  N.  Y.  Life  Ins.  Co.  a.  The  Board  of  Supervisors  of  the  City  of  New  York. 

the  bill,  for  want  of  jurisdiction  ;  and  his  -decision  was  affirmed 
by  the  Court  of  Errors. 

The  case  of  Meserole  v.  The  City  of  Brooklyn,  (26  Wend. 
132),  carried  the  doctrine  still  further.  There  an  action  had 
been  brought  to  restrain  the  Mayor  of  the  City  of  Brooklyn, 
from  enlarging  a  highway  known  as  "  The  Bedford  Road," 
upon  the  ground  that  the  proceedings,  if  persevered  in, 
although  they  might  not,  being  void,  actually  affect  the  title 
of  complainants  to  their  lands,  a  part  of  which  had  been  taken 
for  the  road,  would  cast  a  cloud  over  the  title,  which  would 
diminish  the  value  of  the  property,  and  might  be  used  as  a 
means  of  vexatious  litigation.  The  chancellor  granted  the 
injunction  ;  but  when  the  case  came  before,  the  Court  of 
Errors,  that  court  unanimously  agreed  that  although  the  acts 
of  the  Common  Council  of  Brooklyn  were  wholly  illegal  and 
void,  and  the  corporation  had  no  right  to  take  the  lands,  still, 
the  remedy  was  not  by  injunction,  but  by  certiorari  •  or  if  the 
corporation  persisted  in  going  on,  by  an  action  of  trespass. 

But  it  has  been  insisted  by  the  counsel  for  plaintiff,  that  the 
rule  has  been  altered  by  the  Code,  and  that  now  the  court  has 
jurisdiction  in  every  action  where  the  plaintiff  seeks  to  restrain 
or  prevent  a  wrongful  act ;  in  other  words  that  the  court,  as  a 
court  of  equity,  has  unlimited  power  to  prevent  wrong ;  that 
it  has  power  to  prohibit  any  act  which  a  court  of  law  can 
punish.  This  court  might  then  prevent  by  injunction,  an 
assault  and  battery,  or  the  publication  of  a  libel.  "We  cannot 
consent  to  such  a  construction  of  the  Code.  It  was  never 
intended  by  that  enactment,  that  the  equity  powers  vested  in 
the  courts  should  be  enlarged.  Although  section  219  of  the 
Code  has  been  supposed,  not  only  by  counsel  in  this  case,  but 
by  some  of  the  judges  of  the  Supreme  Court,  to  have  enlarged 
the  equity  powers  of  the  courts,  we  do  not  think  it  has  done 
so.  That  section  speaks  only  of  temporary  injunctions ;  and 
it  will  be  found  that  the  Code  does  not  at  all  attempt  to  define 
the  cases  in  which  a  perpetual  injunction  may  be  granted, 
but  leaves  them  to  be  determined  by  the  old  rule. 

"We  are  therefore  of  opinion  that  we  have  no  jurisdiction  to 
issue  an  injunction  in  this  case. 


254:  ABBOTTS'  PRACTICE  REPORTS. 

Wesson  a.  Judd. 

WESSON  a.  JUDD. 

New  York  Common  Pleas ;  Special  Term,  February,  1855. 
DENIAL  OF  INFORMATION. — SHAM. 

A  denial  in  an  answer,  of  knowledge  or  information  sufficient  to  form  a  belief,  as  to 
matters  stated  in  a  complaint,  is  not  necessarily  sham  or  evasive,  unless  it  appears 
that  the  party  had  the  means  of  obtaining  information  directly  within  his  reach. 

A  defendant  who  admits  that  he  executed  an  instrument  upon  which  he  is  sued, 
cannot  deny  information  sufficient  to  form  a  belief  as  to  facts  stated  in  the  instru- 
ment. 

A  defendant  who  admits  having  executed  an  instrument  similar  to  that  upon  which 
he  is  sued,  cannot  deny,  merely  upon  a  want  of  information  sufficient  to  form  a 
belief,  that  the  instrument  is  correctly  set  forth  in  the  complaint ;  but  he  is 
entitled  to  an  inspection  of  the  original  to  enable  him  to  answer. 

Motion  to  strike  out  an  answer  as  frivolous. 

The  plaintiffs  David  and  Andrew  "Wesson  having  procured 
the  arrest  of  Jeptha  Fowlkes,  in  the  course  of  supplementary 
proceedings  upon  a  judgment  recovered  by  them  against  him, 
James  W.  Judd  and  Fowlkes  gave  an  undertaking  that 
Fowlkes  should  attend  pursuant  to  direction  of  the  judge,  to 
be  examined.  Fowlkes  having  made  default  to  appear,  the 
plaintiffs  brought  this  suit  against  him  and  Judd,  upon  the 
undertaking. 

The  complaint  set  forth  the  recovery  of  the  plaintiff's  judg- 
ment against  Fowlkes, — the  issuing  of  execution,  and  that  it 
was  returned  unsatisfied, — the  arrest  of  Fowlkes,  upon  a  war- 
rant duly  issued  by  Hon.  Chas.  P.  Daly,  pursuant  to  §  292  of 
the  Code, — the  execution  of  the  undertaking  by  the  defend- 
ants, giving  a  copy  of  it, — together  with  Fowlkes'  default  to 
appear,  &c. 

The  first  paragraph  of  the  answer  of  the  defendant  Judd 
denied,  for  want  of  information  sufficient  to  form  a  belief,  the 
allegations  of  the  complaint  as  to  the  recovery  of  a  judgment 
by  the  plaintiffs  against  Fowlkes. 

The  third  paragraph  contained  a  denial,  for  want  of  informa- 


NEW-YOKE.  255 


Wesson  a.  Judd. 


tion  sufficient  to  form  a  belief,  that  Fowlkes  was  arrested  as 
alleged  in  the  complaint,  and  that  the  warrant  was  duly 
issued. 

The  fourth  paragraph  admitted  that  the  defendant  upon  the 
occasion  of  Fowlkes  being  brought  before  a  judge,  did  give  a 
writing,  but  denied,  for  want  of  information  sufficient  to  form 
a  belief,  that  the  writing  was  correctly  set  forth  in  the  com- 
plaint. 

8.  P.  Huff,  for  the  motion. 

E.  P.  Barrow^  opposed. 

DALY,  J. — Held: — I.  That  the  defendant's  denial  that  he 
had  any  knowledge  or  information  sufficient  to  form  a  belief 
of  the  existence  of  the  judgment  upon  which  the  supplemen- 
tary proceedings  were  founded,  was  not  necessarily  sham  or 
evasive.  Hance  v.  Hemming,  (1  Code  It.  N.  S.  204),  was  a  very 
different  case.  There  the  defendant  having  entered  into  aa 
undertaking  in  a  suit  between  Hance  the  plaintiff  and  one 
Cavanagh,  to  pay  the  amount  of  any  judgment  that  might  be 
recovered  against  Cavanagh,  after  the  undertaking  was  given, 
the  suit  against  Cavanagh  was  prosecuted  and  defended,  and 
judgment  was  recovered  against  him ;  and  execution  having 
been  returned  unsatisfied,  an  action  was  brought  against 
Hemming  the  surety.  He  employed  the  same  attorney  that  had 
defended  Cavanagh ;  and  in  his  answer  set  up  that  he  had  no 
knowledge  or  information  sufficient  to  form  a  belief  whether 
the  plaintiff  had  recovered  a  judgment  against  Cavanagh. 
The  Court  of  Common  Pleas  struck  out  the  answer  as  sham  and 
evasive ;  as  Hemming  had  but  to  ask  his  own  attorney  when 
he  prepared  the  answer  for  him  to  swear  to,  whether  the  judg- 
ment was  recovered  against  Cavanagh,  or  not.  But  the  party 
to  the  undertaking  now  in  suit,  was  not  bound  to  search 
through  the  public  records  to  ascertain  whether  the  supple- 
mentary proceedings  were  founded  upon  a  judgment  as 
alleged.  Not  having,  as  in  the  former  case,  the  means  of 
information  directly  within  his  reach,  he  might  properly  state 
the  want  of  knowledge  or  information. 

II.  That  the  allegation   that  the   defendant  Judd  had  no 
knowledge  or  information  sufficient  to  form  a  belief  whether 


256  ABBOTTS'  PRACTICE  REPORTS. 

Sherman  a.  Partridge. 

the  defendant  Fowlkes  was  arrested  upon  order,  &c.  was  bad. 
The  fact  of  the  arrest  was  recited  in  the  undertaking  signed  by 
Judd.  He  had  admitted  the  fact  by  signing  the  undertaking, 
and  could  not  set  up  in  his  answer  that  he  had  no  knowledge 
or  information  sufficient  to  form  a  belief  upon  that  subject. 
The  whole  of  the  third  paragraph  of  the  answer  was  therefore 
stricken  out. 

III.  That  the  whole  of  the  fourth  paragraph  must  also  be 
stricken  out.  The  defendant  could  not  aver  that  he  had  not 
sufficient  information  to  form  a  belief  whether  the  under- 
taking recited  in  the  complaint  was  correctly  set  forth  or  not. 
He  admitted  that  he  executed  an  undertaking,  and  if  he  was 
in  doubt  as  to  the  correctness  of  what  purported  to  be  a  copy 
of  that  undertaking  in  the  complaint,  he  should  have  demanded 
from  the  plaintiff  or  his  attorney,  an  inspection  of  the  original 
instrument,  before  making  an  answer  ;  and  if  they  had  refused 
to  allow  him  to  inspect  it,  the  court  would  by  order,  compel 
its  production,  upon  defendant,  of  a  sworn  copy. 

The  other  parts  of  the  answer  were  unobjectionable.  The 
parts  indicated  were  stricken  out ;  but  the  plaintiff  having 
asked  for  too  much  in  his  motion,  did  not  recover  costs. 


SHERMAN  a.  PARTRIDGE. 

New  York  Superior  Court ;  Special  Term,  February,  1855. 
INTERPLEADER. — SALE  OF  GOODS. 

An  order  of  interpleader  under  §  122  of  the  Code  can  only  be  made,  when  it  is  cer- 
tain that  the  only  question  is  whether  the  plaintiff  or  a  third  person  is  the  true 
owner  of  the  debt,  fund,  or  other  property  for  which  judgment  is  demanded. 

"When  it  is  insisted  that  the  defendant  is  absolutely  liable,  and  is  precluded  from 
setting  up  the  title  of  a  third  person  as  a  defence,  his  application  to  be  discharged 
from  the  suit  must  be  denied. 

It  is  only  in  an  action  against  the  defendant  himself,  that  the  question  of  his  abso- 
lute liability  can  be  properly  raised  and  determined.  A  judge  would  exceed  the 
just  limits  of  his  authority  by  so  deciding  the  question  upon  a  motion,  as  to  put 
an  en'd  to  the  action,  and  bar  an  appeal. 

When  the  action  is  for  the  recovery  of  a  debt  arising  from  the  sale  of  goods,  the 
purchaser  cannot  require  his  vendor  to  interplead  with  a  third  person  claiming  to 
be  the  owner  of  the  goods.  This  is  not  a  case  in  which  an  interpleader  has 
ever  been  allowed,  nor  is  it  embraced  within  the  terms  of  the  Code. 


NEW-YOKE:.  257 


Sherman  a.  Partridge. 


Motion  under  §  122  of  the  Code,  that  one  Henry  Delafield 
be  substituted  as  the  sole  defendant,  and  the  present  defendants 
be  discharged  from  all  liability  to  either  party,  upon  their 
paying  into  court  the  sum  of  $348  17  ;  or  if  that  relief  should 
be  denied,  then  that  Delafield  should  be  made  a  co-defendant. 

The  allegations  of  the  complaint  were,  that  one  Philip  K. 
Searle,  had  sold  to  the  defendants  a  quantity  of  logwood  of 
the  value  of  $500,  and  for  a  valuable  consideration  had  trans- 
ferred and  assigned  to  the  plaintiffs,  his  claim  against  the 
defendants,  arising  from  the  sale.  That  the  defendants,  in 
consideration  of  this  assignment,  had  expressly  promised  the 
plaintiffs  to  pay  them  the  price  or  proceeds  of  the  logwood 
which  it  was  averred  amounted  to  the  sum  of  $499  11,  for 
which  sum,  the  defendant  having  refused  to  pay  it  upon 
request,  judgment  was  demanded.  4 

The  affidavit  of  one  of  the  defendants  upon  which  the 
motion  was  founded  stated,  (inter  alia)  that  one  Henry  Dela- 
field, a  person  not  a  party  to  the  action,  and  without  collusion 
with  the  defendants,  demanded  of  them  the  proceeds  of  the 
logwood,  alleging  that  it  belonged  to  him,  and  that  Searle 
had  not  the  possession  as  owner,  nor  any  right  or  authority  to 
sell  the  same,  or  assign  the  price  thereof. 

The  affidavits  which  were  read  on  the  part  of  the  plaintiffs 
in  opposition  to  the  motion,  stated  the  following  facts :  That 
they  had  sold  to  Searle  for  cash,  a  quantity  of  staves,  and  that 
he  gave  them  his  check  for  the  price,  the  payment  of  which 
was  refused.  That  he  then  gave  them  an  order  on  the  defend- 
ants for  a  definite  sum  as  the  price  of  the  logwood.  That  the 
defendants  declined  to  pay  the  order,  on  the  ground  that  the 
logwood  had  not  yet  been  fully  weighed,  and  that  it  was  not 
certain  that  the  price  or  proceeds  would  amount  to  the  sum 
mentioned,  but  that  they  expressly  promised  to  pay  to  the 
plaintiffs  the  whole  proceeds  when  ascertained,  provided  the 
plaintiffs  would  obtain  from  Searle  a  general  order  or  assign- 
ment of  his  claims.  That  such  an  assignment  which  was  set 
forth,  was  accordingly  obtained,  and  that  the  plaintiff  relying 
upon  it,  and  upon  the  promise  of  the  defendants,  had  omitted 

to  obtain  from  Searle,  who  is  now  insolvent,  a  return  of  the 
17 


258  ABBOTTS'  PKACTICE  REPORTS. 

Sherman  a.  Partridge. 

staves  sold  to  him,  as  they  otherwise  might  and  would  have 
done. 

D.  D.  Lord,  for  the  defendants,  and  for  H.  Delafield. 
I.  The  case  is  not  at  all  varied  by  the  plaintiff's  affidavits,  the 
facts  set  forth  being  wholly  insufficient  to  prove  that  the 
defendants  have  made  themselves  liable  to  the  plaintiffs  in  all 
events  for  the  price  of  the  logwood,  the  promise  they  gave 
amounting  in  reality  to  no  more  than  a  promise  to  pay  to  the 
plaintiffs,  as  assignees,  the  sum  to  which  Searle  as  owner  of 
the  logwood  might  finally  appear  to  be  entitled ;  and  as  to  the 
allegation  that  they  had  sustained  damages  from  their  reliance 
on  the  promise  of  the  defendants,  it  is  too  vague  and  uncertain 
to  merit  attention.  And  were  it  otherwise,  the  defendants,  as 
the  nature  of  the  relation  between  the  plaintiff  and  Searle  was 
not  disclosed  to  them,  cannot  be  responsible.  As  the  plain- 
tiffs therefore  can  only  maintain  the  action  as  the  assignees  of 
Searle,  they  stand  in  the  same  situation  as  Searle  himself,  and 
consequently  their  Tight  to  recover  depends  solely  upon  the 
question  whether  he  or  Delafield,  as  the  true  owner  of  the 
logwood,  is  entitled  to  the  proceeds  of  the  sale.  These  pro- 
ceeds may  justly  be  considered  a  fund  of  which  the  defendants 
were  merely  the  depositaries,  and  as  they  are  willing  and  have 
offered  to  pay  the  fund  into  court,  they  are  entitled  to  be  dis- 
charged. The  case  is  plainly  one  of  those  to  which  the  provi- 
sions of  the  Code  apply,  and  in  which  an  interpleader  has 
always  been  granted. 

II.  If  the  defendants  are  not  to  be  discharged,  the  applica- 
tion of  Delafield  to  be  made  a  party  to  the  action  by  a  proper 
amendment,  cannot  be  denied.  The  action  being  brought  for 
a  particular  fund  is  an  action  for  the  recovery  of  personal  pro- 
perty, within  a  fair  interpretation  of  the  words  of  the  Code. 
Delafield  has,  or  claims  to  have  an  interest  in  the  subject  of 
the  action,  and  to  enable  him  to  assert  his  rights,  he  ought  to 
be  made  a  co-defendant.  If  this  cannot  be  claimed  as  his 
positive  right,  it  would  at  least  be  a  fit  exercise  of  the  discre- 
tion of  the  court. 

J.  T.  Williams,  for  the  plaintiffs.    I.  The  material  question 


NEW-YORK.  259 


Sherman  a.  Partridge. 


is,  whether  the  defendants  shall  be  discharged  and  Delafield 
be  substituted  as  the  sole  defendant ;  and  to  grant  this  would 
be  a  hazardous  and  unequitable  exercise  of  the  discretion  of 
the  court.  It  would  be  unjust  to  release  the  defendants  from 
-a  positive  contract,  by  their  reliance  on  which,  the  plain- 
tiffs have  lost  the  remedies  which,  as  against  Searle,  they 
would  otherwise  have  possessed  and  exercised.  (Crawshay 
10.  Thornton,  7  Simons,  391,  and  Pearson  v.  Cardon,  4  Simons, 
218).  It  is  a  fatal  objection  to  the  application  of  the  defend- 
-ants  that  they  dispute  the  amount  of  the  plaintiff's  claims. 
The  plaintiffs  demand  a  judgment  for  $499  11,  and  the 
defendants  offer  to  pay  into  court  only  $348  17.  (Cham- 
berlain v.  O'Connor,  8  How.  Pr.  R.  45). 

II.  As  to  the  application  of  Delafield  to  be  made  a  co-defend- 
ant, the  court  has  no  discretionary  power  to  grant  it.  This  is 
not  an  action  for  the  recovery  of  real  or  personal  property, 
and  it  is  an  abuse  of  language  to  call  it  so.  It  is  an  ordinary 
action  for  the  recovery  of  a  debt,  not  of  lands,  nor  of  specific 
chattels.  (Judd  v.  Young,  7  How.  Pr.  E.  79). 

DUER,  J. — I.  Taking  into  consideration  the  facts  set  forth  in 
the  plaintiff's  affidavits,  and  which  I  think  might  properly  be 
given  in  evidence  to  sustain  the  averment  in  the  complaint, 
of  a  special  promise,  I  am  clearly  of  opinion  that  the  motion 
for  the  discharge  of  the  defendant,  and  the  substitution  of 
Delafield  as  the  sole  defendant,  must  be  denied. 

•  An  order  of  interpleader  under  §  122  of  the  Code,  can  only 
be  properly  made  when  the  whole  controversy  turns  upon  the 
right  of  property,  that  is,  upon  the  question  whether  the  plain- 
tiff in  the  suit  or  the  claimant  whose  substitution  as  the  defend- 
ant is  desired,  is  the  true  owner  of  the  debt,  fund,  or  other 
property  for  which  judgment  is  demanded.  When  the  plain- 
tiff insists  as  in  the  present  case,  that  the  defendant  by  a  per- 
sonal contract  or  otherwise,  has  rendered  himself  liable  in  all 
events  for  the  debt  sought  to  be  recovered,  and  is  precluded 
from  setting  up  the  title  of  a  third  person  as  a  bar ;  it  would 
be  manifestly  unjust  to  make  the  order,  since  in  the  language 
of  Lord  Cottenham  in  Crawshay  v.  Thornton,  (2  Mylne  &  C. 
1),  it  would  deprive  the  plaintiff  of  his  legal  remedy,  and 


260  ABBOTTS'  PRACTICE  REPORTS. 


Sherman  a.  Partridge. 


might  involve  the  sacrifice  of  his  legal  rights  without  afford- 
ing him  any  equivalent  or  compensation. 

Applying  these  remarks  to  the  case  before  me,  it  is  only  in 
an  action  against  the  defendants  themselves,  that  the  question 
whether  they  have  not  rendered  themselves  absolutely  liable 
to  the  plaintiffs  for  the  price  of  the  logwood  can  be  so  deter- 
mined as  to  secure  to  the  plaintiffs  the  right  of  appeal  to  the 
court  of  ultimate  jurisdiction.  To  deprive  them  of  this  right 
by  putting  an  end  to  this  action  in  its  present  form,  and  sub- 
stituting Delafield  as  the  sole  defendant,  it  seems  to  me  would 
be  an  arbitrary  and  unwarrantable  exercise  of  judicial  power. 
As  against  Delafield,  the  plaintiff  could  -only  recover  upon 
proof  that  Searle  was  the  owner  of  the  logwood,  or  had  full 
authority  to  make  the  sale,  and  the  question  whether  even 
upon  the  supposition  that  Searle  was  not  the  owner,  and  had 
no  such  authority,  the  defendants  were  not  bound  to  pay  to 
the  plaintiffs  the  stipulated  price,  would  not  be  determined  at 
all.  And  thus  the  plaintiffs  might  be  deprived  of  the  judg- 
ment, to  which,  had  the  action  retained  its  original  form,  they 
would  have  been  entitled.  Whether  if  the  plaintiffs  shall  suc- 
ceed upon  the  trial  in  establishing  the  facts  set  forth  in  their 
affidavits,  the  defendants  will  be  precluded  from  setting  up 
the  title  of  Delafield  as  a  bar  to  a  recovery,  is  a  question, 
upon  which  I  am  not  to  be  understood  as  expressing  or  inti- 
mating any  opinion.  I  only  mean  to  say  that  as  the  question, 
of  the  absolute  liability  of  the  defendants  is  distinctly  raised 
by  the  complaint  and  the  affidavits,  I  have  no  right  to  decide 
it  upon  this  motion,  and  thus  to  prevent  its  decision  in  the 
regular  progress  of  the  cause. 

The  provisions  in  §  122  of  the  Code,  are  founded  upon  the 
English  Statute  1  &  2  "Will.  IV.  c.  58,  and  hence  the  decisions 
upon  that  statute  have  with  great  propriety  been  referred  to. 
They  appear  to  have  settled  the  rule,  that  it  is  only  when  no 
other  question  than  the  right  of  property  is  meant  to  be  liti- 
gated, that  an  interpleader  can  justly  be  allowed.  When  it  is 
alleged  that  the  person  who  seeks  to  be  discharged  as  a  mere 
depositary  or  stakeholder,  is  liable  upon  any  ground  independ- 
ent of  the  title,  the  application  must  be  denied.  Crawshay  v. 
Thornton,  (7  Sim.  391,  S.  C.  2  Mylne  &  C.  1).  Pearson  v. 


NEW-YOKE.  261 


Sherman  a.  Partridge. 


Garden,  (2  Euss.  &  M.  606).  Palorni  v.  Campbell,  (3  Dmd. 
N.  S.  397),  and  Lindsay  v.  Barren,  (6  C.  B.  E.  291),  differ  in 
circumstances  from  the  case  before  me,  but  in  principle  are 
not  to  be  distinguished.  As  they  appear  to  me  to  have  been 
rightly  decided,  it  is  my  duty  to  follow  them. 

Nor  is  it  only  upon  the  ground  that  has  been  stated  that  I 
must  refuse,  by  substituting  Delafield,  to  discharge  the  defend- 
ants. Had  this  action  been  brought  by  Searle  himself,  or  by 
the  plaintiffs  merely  as  assignees,  I  must  still  have  said  that 
the  facts  do  not  exhibit  a  case  for  an  interpleader  under  a 
just  construction  of  the  Code.  The  plaintiffs  seek  to  recover 
a  debt  arising  upon  contract,  but  Delafield  is  not  "  a  third 
person,  nor  a  party  to  the  suit  making  a  demand  for  the  same 
debt,"  as  the  words  of  the  Code  require  him  to  be,  to  justify  an 
order  for  his  substitution.  As  he  denies  that  Searle  had  any 
authority  to  make  the  sale,  his  demand  as  owner  is  for  the 
logwood  itself,  or  its  value,  which  may  be  greater  or  less  than 
the  price  agreed  to  be  paid ;  and  at  any  rate  is  not  a  debt  of 
which,  as  such,  he  may  compel  the  payment.  The  words  of 
the  English  statute  do  not  at  all  differ  in  meaning  from  those 
of  the  Code,  and  the  Court  of  Exchequer  has  held  that  by  their 
necessary  construction,  they  preclude  a  purchaser  of  goods 
from  calling  his  vendor  to  interplead  with  a  third  person 
claiming  to  be  the  owner.  And  one  of  the  learned  judges 
truly  observed,  that  independent  of  the  statute,  an  interpleader 
in  such  a  case  had  never  been  allowed  in  a  court  of  equity. 
(Stancy  v.  Sidney,  14  Mees.  &  W.  800). 

The  provisions  of  the  Code,  like  those  of  the  English  statute, 
were  certainly  not  designed  to  introduce  new  cases  of  inter, 
pleader,  but  merely  to  enable  defendants  in  cases  where  an 
interpleader  is  proper,  to  relieve  themselves  by  a  summary 
proceeding,  from  the  delays  and  expense  of  a  formal  action. 

II.  The  alternative  motion  that  Delafield  may  be  made  a 
co-defendant,  must  also  be  denied.  This  is  not  an  action  for 
the  recovery  of  real  or  personal  property  within  the  meaning 
of  the  Code.  He  has  no  interest  that  can  be  endangered  or 
affected  by  any  judgment  that  the  plaintiffs  may  obtain,  nor 
is  his  presence  necessary  to  a  complete  determination  of  the 
controversy.  As  owner  of  the  logwood,  he  must  seek  his 


262  ABBOTTS'  PRACTICE  REPORTS. 

The  Union  India  Rubber  Company  a.  Babcock. 

remedies  against  the  defendants,  or  those  into  whose  hands  the 
property  may  have  passed. 

The  objection  that  the  defendants  have  offered  to  pay  into 
court  a  less  sum  than  is  demanded  by  the  complaint,  if  other 
objections  could  be  removed,  I  should  by  no  means  regard  as 
fatal.  I  should  then  have  no  difficulty  in  directing  a  refer- 
ence, or  an  issue  for  ascertaining  the  sum,  which  as  the  price 
of  the  logwood,  the  defendants  were  bound  to  pay. 

I  remark  in  conclusion,  that  unless  the  defendants  have  ren- 
dered themselves  absolutely  liable,  which  is  strenuously  denied 
by  their  counsel,  I  do  not  see  that  they  can  be  prejudiced  by 
the  denial  of  this  motion.  If  the  sale  made  by  Searle  was 
fraudulent  and  void,  the  title  of  the  true  owner,  according  to 
the  decision  of  this  court  in  Bates  v.  Stanton,  (1  Duer,  79), 
may  be  set  up  by  them  as  a  full  defence. 

I  shall  deny  both  motions  without  costs,  and  with  liberty  to 
the  defendants,  if  they  shall  be  so  advised,  to  commence  a 
regular  action  for  compelling  an  interpleader. 


THE  UNION  INDIA  RUBBER  COMPANY  a.  BABCOCK. 
New  York  Superior  Court;  Special  Term,  December,  1854. 

JUDGMENT  OF.  COURT  OF  APPEALS. — How  CARRIED  INTO  EFFECT. 

COSTS. 

The  proper  practice  in  respect  to  the  form  of  entering  judgment  in  the  court  below 

upon  remittitur  from  the  Court  of  Appeals,  defined. 
The  costs  of  the  appeal  to  the  Court  of  Appeals,  should  be  adjusted  by  the  clerk  of 

the  court  below,  and  inserted  in  the  entry  of  judgment,  in  that  court. 

Form  of  judgment  upon  a  remittitur. 

Motion  for  judgment  upon  remittitur  from  the  Court  of 
Appeals. 

The  plaintiffs  sued  on  a  money  demand  arising  on  account 
of  goods  sold,  and  upon  the  report  of  a  referee,  judgment  was 
ordered  for  the  plaintiffs  for  thirteen  hundred  and  fifty-two 
dollars,  ninety-two  cents,  including  costs.  Both  parties 


NEW-YORK.  263 


The  Union  India  Rubber  Company  a.  Babcock. 


appealed  to  the  General  Terra.  Both  appeals  were  dismissed 
and  the  judgment  below  affirmed.  The  defendant  then 
appealed  to  the  Court  of  Appeals.  But  he  having  served  no 
printed  copies  of  the  case,  the  appeal  was  dismissed  by  the 
respondent  by  an  order  entered  of  course.  In  accordance  with 
the  provisions  of  this  order,  the  record  as  returned  to  the  Court 
of  Appeals  was  transmitted  to  the  Superior  Court,  under  a 
certificate  of  the  clerk. 

The  plaintiff  now  moves  for  judgment  upon  the  remittitur, 
with  costs  of  the  appeal. 

T.  H.  Rodman,  for  plaintiff. 
J.  H.  Ward,  for  defendant. 

HOFFMAN,  J. — The  plaintiffs  recovered  a  judgment  against 
the  defendant,  on  the  22d  day  of  December,  1853,  for  the  sum 
of  $1353  92.  This  was  an  affirmance  by  the  General  Term, 
of  a  judgment  obtained  at  Special  Term  on  the  9th  of  July, 

1853.  The  defendant  appealed  to  the  Court  of  Appeals,  on 
the  24th  of  December,  1853.     And  on  the  4th  of  December, 

1854,  an  order  of  that  court  was  made,  dismissing  the  appeal, 
with  costs,  for  want  of  service  of  printed  copies  of  the  case,  as 
required  by  the  7th  rule  of  that  court,  more  than  forty  days 
having  elapsed  since  the  appeal  was  perfected.     The  order 
also  directed  the  record  and  proceedings  to  be  remitted  to  the 
Superior  Court,  there  to  be  proceeded  upon  according  to  law. 
This  has  been  done  by  transmitting  to  this  court  the  record  as 
returned  to  the  Court  of  Appeals,  under  a  certificate  of  the 
clerk. 

By  the  12th  section  of  the  Code,  the  judgment  of  the  Court 
of  Appeals,  shall  be  remitted  to  the  court  below,  to  be  enforced 
according  to  law.  The  provision  of  the  Revised  Statutes  was 
similar; — that  when  an  appeal  shall  have  been  heard  and 
determined,  all  the  proceedings,  together  with » the  decree  or 
order  therein,  should  be  remitted  to  the  Court  of  Chancery, 
where  such  further  proceedings  should  be  had  as  might  be 
necessary  to  carry  it  into  effect.  (2.  JRev.  Stats.,  167,  §  29). 

The  469th  section  of  the  Code  retains  all  the  former  rules 
and  practice  of  the  courts,  not  inconsistent  with  the  act.  And 


V 
264  ABBOTTS'  PRACTICE  REPORTS. 

The  Union  India  Rubber  Company  a.  Babcock. 

although  the  order  to  dismiss  an  appeal  is  entered  as  of  course, 
with  the  clerk,  yet  the  theory  is,  that  it  is  the  same  thing  as  if 
made  in  open  court,  by  the  judges  themselves.  It  may  also  be 
well  considered  that  such  an  order  is  a  judgment  within  the 
meaning  of  the  12th  section  of  the  Code.  Justice  Parker  in 
Tillspaugh  v.  Dick,  (8  How.  Pr.  R.,  33,)  calls  a  dismissal  of  a 
complaint  for  want  of  prosecution,  a  judgment. 

The  practice  upon  remittitur  of  appeals  was  well  settled. 
Application  was  made  to  the  Court  of  Chancery  for  an  order 
or  decree  making  the  decree  of  the  Court  of  Errors  the  decree 
of  that  court,  and  that  it  be  carried  into  effect.  Occasionally,  the 
decision  above  rendered  it  necessary  to  make  an  entirely  new 
decree,  as  in  the  case  of  the  James  will.  But  where  there  was 
a  mere  decree  of  affirmance  with  costs,  the  decree  in  the  court 
below  recited  the  remittitur,  and  the  amount  of  the  costs  as 
taxed,  and  thereupon  adjudged  and  decreed  that  the  judgment 
of  the  Court  for  the  Correction  of  Errors,  and  the  decree  of 
this  court  thereby  affirmed,  be  carried  into  full  execution  and 
effect,  and  that  the  party  have  execution  for  the  costs  directed 
to  be  paid  by  the  judgment  of  said  Court  of  Errors,  and  the 
said  decree  of  this  court  thereby  affirmed.  (Decree  in  Gre- 
gory v.  Dodge,  stated  3  Hoff.  Ch.  Pr.  220.  Bowen  v.  Idley, 
ibid.  211). 

In  Dale  ads.  Roosevelt  ( 1  Wend.  25),  the  practice  on  writs 
of  error  is  pointed  out.  It  was  held  that  the  remittitur  could 
be  filed  in  vacation,  that  an  entry  on  the  original  record  of  the 
writ  of  error  and  remittitur,  was  unnecessary,  that  the  costs 
taxable  after  the  record  had  came  down,  were  to  be  inserted 
in  the  remittitur,  and  an  award  of  execution  for  such  costs,  I 
apprehend,  would  be  proper.  It  appears  settled  law  that  no 
new  rule  for  execution  as  to  the  original  judgment  was  neces- 
sary. (2  Cow.  510). 

The  theory  of  this  course  of  proceeding  was,  that  the  ori- 
ginal decree  remained  in  full  force,  dating  from  its  original 
entry,  and  of  course  if  for  a  money  demand  and  docketed, 
retaining  its  lien.  Then  the  decree  made  upon  the  remittitur 
operated  in  cases  of  affirmance,  simply  to  give  and  declare  a 
right  to  the  costs  of  the  appeal,  and  direct  an  execution  to  issue 
for  them,  and  also  where  execution  for  recovery  of  money  or 


NEW-YOKE.  265 


The  Union  India  Rubber  Company  a.  Babcock. 


performance  of  an  act  had  been  decreed,  to  award  execution 
for  that  also. 

I  apprehend  that  a  similar  course  may  be  pursued  under  the 
Code,  and  that  an  order  may  be  entered  upon  the  filing  the 
remittitur  substantially  in  the  form  used  in  the  Court  of  Chan- 
cery in  similar  cases  of  appeals. 

In  Hosack  v.  Rogers,  (7  Paige,  108),  the  chancellor  adverted 
to  the  practice- in  the  Supreme  Court  and  the  Court  of  Chan- 
cery upon  filing  remittiturs,  and  settled,  as  the  future  course 
in  the  latter  court,  that  they  must  either  be  presented  to  the 
chancellor  in  the  first  instance,  or  the  party  to  whom  the  remit- 
titur was  delivered  might  ffive  notice  for  a  regular  motion  day 
in  term  or  vacation,  that  1R  would  file  the  remittitur  and  ask 
for  such  decree  or  orders  as  he  considered  himself  entitled  to, 
upon  it 

There  is  one  point,  however,  which  requires  consideration. 
The  costs  of  the  appeal  have  been  adjusted  by  the  clerk  of  this 
court.  The  question  is,  whether  this  is  regular. 

By  the  course  of  the  House  of  Lords,  a  specific  sum  is  usu- 
ally inserted  in  the  decree  or  judgment,  as  the  amount  of  costs 
to  be  allowed.  As  there  is  no  officer  of  the  House  authorized 
to  tax  costs,  if  the  agents  cannot  agree,  and  the  House  does 
not  fix  the  amount  definitely,  a  reference  is  sometimes  made 
to  a  solicitor  agreed  upon  by  the  parties.  (Palmer's  Pr.  74, 
2  Daniel's  Pr.  1371).  It  appears  also  that  the  House  of 
Lords  may  order  a  party  into  custody  for  a  contempt  in  not 
paying  them,  or  direct  the  recognizance  to  be  estreated  into 
the  Exchequer.  (Ibid.  1372). 

•The  original  19th  rule  of  the  Court  of  Errors,  adopted  in 
April,  1827,  directed  the  costs  to  be  taxed  by  the  chancellor 
or  judge  of  the  Supreme  Court  or  clerk  of  the  Court  of  Errors. 
(9  Cow.  289).  This  was  considered  to  be  inconsistent  with  the 
fee  bill,  (2  Rev.  L.  4),  directing  taxation  of  costs  in  the  usual 
manner  of  the  respective  courts.  Accordingly  in  April,  1829, 
the  rule  was  amended  to  conform  it  to  the  language  of  the  fee 
bill,  and  the  costs  of  that  court  were  afterwards  taxed  by  the 
regular  taxing  officers  of  either  court.  This  could  be  done 
after  the  record  had  been  sent  down.  (Legg.  v.  Overbagh,  4 
Wend.  188). 


266  ABBOTTS'  PRACTICE  REPORTS. 

The  Union  India  Rubber  Company  a.  Babcock. 

The  Code  has  nowhere  in  terms  prescribed  either  that  costs 
shall  be  taxed,  or  by  whom  they  shall  be  taxed.  The  power 
is  deduced  from  the  311th  section,  and  is  considered  as  belong- 
ing to  the  clerk,  from  the  language  there  used  that  he  shall 
insert  in  the  entry  of  judgment  the  sum  of  the  charges  for 
costs  as  provided  in  the  Code,  and  the  disbursements  and  fees 
of  officers  allowed  by  law.  (Whipple  v.  Williams,  4  How.  Pr. 
.7?.,  28.  Nellis  v.  De  Forrest,  6  How.  Pr.  R.,  413). 

It  has  been  decided  in  several  cases,  that  the  power  of  the 
clerk  under  the  Code  to  tax  costs  is  limited  to  a  taxation  upon 
final  judgment.  (Nellis  v.  De  Forest,  6  How.  Pr.  It.  413  ; 
Mitchell  v.  Westervelt,  Ibid.  265 ;  Burnside  v.  Brown,  6  Dis- 
trict, January,  1852,  cited  6  How^Pr.  R.  415  ;  Echerson  v. 
Spoor,  4  How.  Pr.  R.  361 ;  Morrison  v.  Ide,  Ibid.  304). 

In  Yan  Schaick  v.  "Winne,  (8  How.  Pr.  R.  5),  Justice 
Harris  held  that  the  taxation  of  costs  by  a  judge  at  chambers 
was  a  nullity.  The  clerk  was  the  only  officer  authorized  by 
the  Code  to  tax  or  adjust  costs.  His  authority  was  limited  to 
the  taxation  of  costs  upon  the  entry  of  judgment.  The  amount 
of  costs  upon  interlocutory  proceedings  should  be  fixed  by  the 
order  allowing  them,  and  he,  as  well  as  Justice  Hand,  hold 
that  the  court  has  clearly  the  power  in  all  other  cases  to  make 
a  reference  to  the  clerk  to  adjust  the  costs. 

The  authority  to  tax  the  costs  has  been  for  many  years  the 
subject  of  legislative  enactment.  By  the  37th  section  of  the 
Revised  Statutes,  records  of  judgment  should  be  signed  and 
the  costs  be  taxed,  by  one  of  the  justices,  or  by  the  clerk,  a 
circuit  judge  or  supreme  court  commissioner.  (2  Rev.  Stats. 
282,  §  3T).  The  8th  section  of  the  act  of  1813,  (1  Rev.  Stats. 
320),  gave  the  same  power  to  the  clerks. 

So  in  the  Court  of  Chancery,  an  act  of  April  15,  1814,  (Sess. 
Laws,  1814,  163,  p.  187),  authorized  the  chancellor  to  desig- 
nate masters  to  tax  costs  who  should  have  exclusive  jurisdic- 
tion to  do  so  during  the  pleasure  of  the  court.  (See  the 
authority  continued  in  2  R.  S.  169,  §  5). 

The  language  of  the  311  section  of  the  Code,  is  that  the 
clerk  shall  insert  in  the  entry  of  judgment  the  sum  of  the 
charges  for  costs  as  above  provided,  with  the  necessary  dis- 


NEW-YORK.  267 


The  Union  India  Rubber  Company  a.  Babcock. 


bursements  and  the  expense  of  printing  the  papers  upon 
appeal. 

By  the  307th  section  and  the  seventh  subdivision,  an  allow- 
ance is  to  be  made  on  appeal  to  the  Court  of  Appeals,  and 
such  costs  appear  to  fall  within  the  phrase  "as  above  pro- 
vided," as  well  as  any  other.  The  clerk  therefore  has,  as  to 
these,  the  same  authority  that  he  has  as  to  any  other  costs. 

The  proper  mode  then  appears  to  be  that  the  judgment  of 
the  Court  of  Appeals  be  directed  to  be  made  the  judgment  of 
this  court,  and  that  the  costs  of  appeal  when  adjusted,  be 
inserted  in  such  judgment.* 

*  His  honor,  with  the  concurrence  of  three  other  justices,  approved  of  the  follow- 
ing order :  remarking  that  if  on  the  presenting  the  remittitur,  the  court  deemed  a 
notice  proper,  the  order  would  be  so  far  varied  as  to  be  made  an  order  to  show 
cause  why  the  judgment  of  the  Court  of  Appeals  should  not  be  made  the  judgment 
of  the  Superior  Court,  and  a  judgment  entered  in  the  Superior  Court  conformably 
thereto  •,  a  copy  of  the  proposed  judgment  to  be  served  with  such  order  to  show  cause. 

TITLE  OF  CAUSE.  "  At  a  Special  Term,"  Ac. 

"  This  cause  having  been  brought  on  upon  the  remittitur  herein  sent  down 
from  the  Court  of  Appeals  and  now  filed  in  this  court,  by  which  remittitur  it 
appears  that  an  appeal  was  taken  by  the  defendants  from  the  judgment  of  this 
court  to  the  said  Court  of  Appeals,  and  that  such  appeal  had  been  dismissed  by 
such  court  with  costs  for  want  of  prosecution,  and  that  the  record  and  proceedings 
had  been  directed  by  said  Court  of  Appeals  to  be  remitted  to  this  court,  and  this 
court  directed  to  enforce  the  said  judgment  of  the  Court  of  Appeals  according  to 
law.  Now,  therefore,  on  motion  of  Mr.  Rodman  of  counsel  for  the  plaintiffs,  it  is 
ordered  and  adjudged  that  the  judgment  of  the  said  Court  of  Appeals  be,  and  the 
same  is  hereby  made  the  judgment  of  this  court ;  and  that  the  plaintiffs  have  execu- 
tion against  the  defendants  for  the  costs  when  adjusted  by  the  clerk  and  inserted  in 
this  judgment,  as  well  as  for  the  amount  adjudged  to  be  recovered  in  and  by  the 
judgment  of  this  court  in  this  cause  entered  the  9th  of  July,  in  the  year  1853  ;  and 
that  this  order  or  judgment  be  annexed  to  the  judgment  record  herein." 


268  ABBOTTS'  PKACTICE  KEFOKTS. 


The  People  a.  Restenblatt. 


THE  PEOPLE  a.  RESTENBLATT. 

Court  of  General  Sessions  ;  February,  1855. 

INDICTMENT. — GROUND  FOE  QUASHING. 

An  indictment  should  be  quashed  when  it  clearly  appears  by  affidavit  that  it  was 
found  by  the  grand  jury  without  adequate  evidence  to  support  it. 

Motion  to  quash  two  indictments. 

Mr.  Graham,  for  the  motion. 
The  District  Attorney,  opposed. 

STUAKT,  J. — The  defendant  is  before  the  court  upon  two 
indictments  for  false  pretences.  Counsel  for  the  accused 
moves  to  quash  both  indictments,  upon  the  ground  that  they 
were  found  without  any  proofs  of  the  commission  of  the 
offences  preferred. 

On  the  argument  of  the  case  by  Mr.  Graham  for  the  pri- 
soner, and  the  District  Attorney  for  the  people,  it  was  con- 
ceded and  agreed  on  the  one  side  and  on  the  other,  that  the 
preliminary  affidavits  of  the  complaining  witnesses,  which 
accompany  the  indictment,  contained  all  the  testimony  given 
before  the  grand  jury,  and  on  which  they  acted  in  ordering 
these  bills.  I  have  read  the  complaining  papers  with  care, 
and  it  is  apparent  that  they  not  only  fail  to  exhibit  proof 
sufficient  to  indict,  but  are  without  any  legal  evidence  what- 
ever of  a  violation  of  the  statute  against  false  pretences.  This 
being  manifest,  and  having  regard  to  the  concession  by  the 
learned  attorney  for  the  people — that  these  primary  deposi- 
tions contain  all  and  precisely  the  same  facts,  matters  and 
things  testified  to  by  the  deponents  when  before  the  grand 
jury,  and  that  the  grand  inquest  had  no  other  evidence,  know- 
ledge or  information  in  the  premises  than  what  is  expressed  by 
the  affidavits  in  question — it  is  clearly  certain  that  the  defend- 
ant has  been  indicted  for  two  criminal  offences,  each  a  felony, 
without  legal  proof,  and  therefore  without  any  proof,  of  then- 
perpetration.  And  now,  upon  this  state  of  facts,  (given  pre- 


NEW-YOKE.  269 


The  People  a.  Restenblatt. 


lirainarily  for  a  better  view  of  the  case),  the  court  is  moved  to 
go  behind  the  indictments  and  take  judicial  notice  of  this  want 
of  proof  for  the  purpose  of  setting  them  aside ;  thus  raising 
the  question,  both  new  and  important,  whether  a  criminal 
court  can  pass  behind  the  record  to  learn  if  there  was  any 
proof  before  the  grand  inquest  going  to  establish  the  offence 
alleged,  with  a  view  to  quash  an  indictment  lawful  in  it&  com- 
position, in  accordance  with  the  rules  of  pleading,  and  import- 
ing absolute  verity  upon  its  face.  -The  criminal  books  afford 
almost  no  authority  for  the  exercise  of  such  a  power,  and  I 
cannot  find  a  precedent  among  adjudicated  criminal  cases 
either  in  this  country  or  England,  for  so  bold  an  intrenchment 
of  the  heretofore  scarcely  disputed  right  of  a  grand  jury  to 
indict  whom  they  pleased,  when  they  pleased,  how  they 
pleased,  and  for  what  they  pleased,  with  proof  or  no  proof 
as  they  pleased,  defying  the  court  of  which  they  are  less  than 
a  co-ordinate  branch,  against  all  review  of  their  acts,  however 
demanded  by  the  rights  of  the  citizen,  or  needed  for  ends  of 
public  justice ;  nor  yet  is  there  any  decision  involving  a  prin- 
ciple of  law  or  rule  of  criminal  procedure  going  to  interdict 
such  innovation  when  prudently  resorted  to  for  the  attainment 
of  truth  and  the  administration  of  that  justice  which  is  the 
right  of  all  men. 

An  indictment,  as  defined  in  Jacob's  Law  Dictionary  upon 
several  authorities  cited,  is  a  "  bill  or  declaration  of  complaint, 
drawn  up  in  form  of  law,  and  exhibited  for  some  criminal 
offence."  "  It  is,"  says  Chief  Justice  Holt,  "  a  plain,  brief 
and  certain  narration  of  an  offence  committed  by  any  person, 
and  of  the  necessary  circumstances  that  concur  to  ascertain 
the  fact  and  its  nature."  An  indictment,  in  the  better  lan- 
guage of  Mr.  Hawkins,  (Hawk.  P.  (7.)  "is  an  accusation  made 
in  a  prescribed  legal  form,  upon  evidence,  by  a  number  of 
authorized  persons,  of  some  criminal  offence  against  the  peace 
of  the  people,  and  when  preferred  in  court,  becomes  a  record 
for  purposes  of  criminal  prosecution." 

The  question  recurs,  may  a  "  bill  of  complaint  drawn  up  in 
legal  form"  be'  impeached  for  any  cause  ?  That  it  may,  for 
some  reasons,  will  not  be  disputed ;  and  if  for  some,  why  not 
in  all  cases  where  it  is  manifest  that  the  body  indicting  has  no 


270  ABBOTTS'  PRACTICE  REPORTS. 

The  People  a.  Restenblatt. 

jurisdiction  over  the  subject  matter  on  which  the  accusation 
is  predicated.  If  a  court  may  look  upon  the  face  of  an  indict- 
ment to  see  if  it  contains  all  the  elements  necessary  to  its 
validity,  why  may  it  not  go  over  to  the  persons  who  preferred 
it,  to  see  if  they  were  duly  authorized  to  do  so — to  learn  if 
they  were  constituted  of  the  number  required  by  the  statute, 
and  if  so,  whether  they  were  all  qualified  according  to  law  and 
the  like  ?  This,  it  is  said,  is  not  denied.  Very  good.  Why, 
then,  has  not  the  court  power  to  inquire  after  any  misconduct 
of  one  or  more  grand  jurors,  tending  to  vitiate  their  proceed- 
ings, or  of  others,  going  to  the  prejudice  of  their  acts  ;  or  to 
discover  whether,  although  a  crime  has  been  proved,  it  did 
not  also  appear  that  it  was  committed  in  a  foreign  State  or 
country ;  or  if  perpetrated  within  the  pale  of  their  jurisdiction, 
whether  it  was  not  so  ancient  as  to  be  without  the  cognizance 
of  the  criminal  law ;  or  if  within,  it  had  not  been  shown  by 
the  testimony  of  a  witness  infamous  of  crime  and  unpardoned 
of  a  conviction  for  felony ;  and  further,  of  like  matters  ?  All 
this,  I  take  it — certainly  all  except  the  latter  instance — will 
not  be  denied  by  any  one  who  has  given  the  subject  their 
attention.  The  ground,  as  it  seems  to.me,  for  an  interference 
by  the  court  in  cases  of  this  nature  is,  that  the  grand  jury  is 
wholly  without  authority  to  indict,  upon  the  well  settled  prin- 
ciple that  no  jurisdiction  by  any  criminal  magistracy  can 
obtain  over  the  subject  matter  of  a  criminal  offence,  except 
upon  sworn  legal  testimony  before  a  duly  constituted  autho- 
rity ;  as  no  jurisdiction  can  be  had  of  the  body  of  a  criminal 
offender,  except  by  reason  of  his  personal  presence  before 
the  power  having  cognizance  of  the  crime.  If  this  be  good 
law,  with  all  the  force  of  truth  and  the  strength  of  jus- 
tice, how  may  a  grand  jury  indict  any  one  of  a  crime, 
having,  for  want  of  proof,  no  jurisdiction  of  the  subject  mat- 
ter of  the  offence ;  or,  if  they  do,  why  may  not  a  court  go 
behind  the  record  and  relieve  the  accused  of  preceding  imprison- 
ment, with  the  care,  expense,  and  degradation  of  a  public  trial? 
The  answer  is,  not  that  there  is  any  law  to  prevent,  but  that  it 
has  never  been  done,  which,  with  this  court,  would  be  sufficient 
if  justice  to  the  citizen  did  not  otherwise  require ;  but  when  it 
is  demanded  by  what  are  in  my  judgment  the  legal  rights  of 


NEW-YOKE.  271 


The  People  a.  Restenblatt. 


the  accused,  it  is  no  answer,  and  shall  not  stay  this  court  from 
a. prudent  and  careful  performance  of  its  duty.  It  is,  in  my 
judgment,  quite  enough  that  a  grand  jury  is  licensed  to  act 
in  secret  upon  exparte  testimony  in  respect  to  all  matters  and 
persons,  without  permitting  them  to  indict  individuals  contrary 
to  the  rules  of  law,  and  where  no  crime  has  been  proved  ; — as 
for  instance,  a  witness  testifies  before  the  court  and  jury;  a 
spectator  hears  a  bystander  say  that  the  evidence  is  corruptly 
false;  upon  this,  the  spectator  goes  before  the  grand  jury  now 
in  session,  and  swears  that  the  witness  testified  to  something 
which  he  believes  to  be  utterly  false,  as  a  citizen  standing 
hard  by  said  it  was  so  ;  and  upon  this  an  indictment  is  ordered 
for  perjury.  Is  there  no  relief  in  such  a  case,  save  a  public 
trial?  Can  not  the  court,  these  facts  appearing,  quash  the 
indictment  for  insufficiency  of  proof?  If  not,  why  not?  The 
only  answer  is  that  there  is  no  authoritive  precedent.  If  not, 
it  is  time  for  one ;  for,  if  controlled  by  nothing  else,  grand 
juries  should  be  bound  by  the  rules  of  evidence  ;  for  upon  this, 
more  than  any  thing  else,  depends  the  citizen's  safety.  In  the 
case  of  Dr.  Dodd,  (1  Leach,  C.  Z.,  184),  when  the  defendant 
was  called  upon  to  plead,  he  challenged  the  validity  of  the 
indictment  upon  the  ground  that  it  was  found  upon  the  testi- 
mony of  incompetent  witnesses.  The  court  entertained  the 
objection.  The  matter  was  argued  by  some  of  the  most  able 
lawyers  at  the  English  bar,  before  the  twelve  judges,  and  it 
was  only  because  they  decided  that  the  evidence  was  legal  and 
the  witnesses  competent,  that  the  objection  failed.  It  is  said, 
I  know,  that  the  doctrine  expressed  in  this  case,  never  obtained 
as  an  authority,  and  does  not  now  prevail  as  the  law  upon  this 
subject.  The  contrary  were  quite  as  easily  stated.  In  the 
case  of  Hulbert,  (4  Denio,  133),  the  accused,  after  he  had 
pleaded  and  on  going  to  trial,  sought  to  give  evidence  relative 
to  the  character  and  amount  of  proof  before  the  grand  jury, 
when  the  indictment  was  found,  with  a  view  to  show  that  but 
one  among  a  number  of  counts  for  as  many  misdemeanors  had 
been  proved  before  the  body  indicting  him,  which  was  denied; 
as  that  would  be  to  impeach  the  grand  jurors  before  a  traverse 
jury,  empanneled  to  try  the  accused.  In  the  decision  of  this 
case,  Judge  Bronson  took  occasion  to  say  that  an  indictment 


272  ABBOTTS'  PKACTICE  EEPORTS. 

Selden  a.  Christophers. — Christophers  a.  Selden. 

could  not  be  impeached,  unless  upon  motion,  by  showing  that 
it  was  not  found  upon  sufficient  evidence,  or  that  there  was 
any  other  fault  or  irregularity  in  the  proceeding  of  the  grand 
jury,  and  added  that  when  the  ends  of  public  justice  required 
it,  a  record  ought  to  be  set  aside,  and  when  done,  that  was  an 
end  of  it.  This  law  is  controverted  by  the  assertion  that  it  is 
but  the  dictum  of  a  judge  in  respect  to  a  matter  not  embraced 
by  the  question  under  the  consideration  of  the  courts.  Granted. 
It  is  equally  the  opinion  of  one  of  the  ablest  judges  that  ever 
held  a  place  in  the  Supreme  Court  of  this  state. 

An  indictment  is  the  foundation  (so  to  speak)  of  a  criminal 
prosecution,  and  if  it  is  not  just  and  lawful  in  all  its  character, 
it  ought  to  be  broken.  Touching  the  two  under  consideration, 
if  there  was  any  legal  proof — no  matter  how  little — I  would 
not  combat  or  criticise  it  for  the  purpose  of  granting  this 
motion  ;  but  as  there  was  no  lawful  evidence  whatever  before 
the  grand  jury  to  negative  the  truth  of  the  pretences  alleged, 
I  am  without  doubt  of  the  power  of  the  court  to  set  them  aside, 
and  am  convinced  of  my  duty  in  the  matter.  The  motion  to 
quash,  is  granted.* 


SELDEN  a.  CHRISTOPHERS.— CHRISTOPHERS  a.  SELDEN. 

Supreme  Court,  First  District',  General  Term,  February,  1855. 
(Original  and  cross  actions.} 

LEAVE  TO  ANSWER  ON  TERMS.     THE  TERMS  SUBSEQUENTLY 
MODIFIED. 

A  demurrer  put  in  by  an  executor  was  overruled  at  special  term,  with  costs,  which 
were  ordered  to  be  paid  out  of  the  estate,  leave  being  given  to  the  executor  to 
answer  on  payment  of  costs,  within  twenty  days.  The  executor  subsequently 
obtained  from  another  judge  at  special  term,  an  order  allowing  him  to  answer 
without  present  payment  of  costs.  Held,  on  appeal  from  this  Jatter  order,  that  it 
should  be  affirmed. 

*  The  District  Attorney  remarked,  on  the  rendering  of  this  decision,  that  his  own 
views  did  not  coincide  with  those  expressed  by  the  court,  and  therefore,  as  it  was 
an  important  question,  and  ought  to  be  settled  by  the  court  of  last  resort,  he  would 
take  the  liberty  of  reviewing  the  decision  upon  a  writ  of  error. 


NEW-YOKE.  273 


Selden  a.  Christophers. — Christophers  a.  Selden. 


Appeal  from  an  order  made  at  special  term,  modifying  the 
terms  on  which,  by  a  previous  order,  defendant  was  allowed  to 
answer. 

MITCHELL,  J. — In  the  first  action,  Yermilya,  the  testator,  had 
interposed  a  demurrer  in  his  life-time ;  he  then  died,  and  the 
plaintiff  amended  his  complaint  and  brought  in  the  executors 
and  devisees  of  Yermilya,  as  defendants  ;  and  to  this  amended 
complaint  they  put  in  a  demurrer  similar  to  that  interposed  by 
the  testator.  The  demurrer  was  overruled  on  a  hearing  before 
Judge  Roosevelt,  on  the  6th  of  October,  with  costs  as  against  the 
executor,  out  of  the  estate,  but  without  costs  as  against  the 
infant  defendant ;  and  by  the  order  Christophers  was  to  pay  the 
costs  out  of  the  funds  of  the  estate  and  have  leave  to  answer 
within  twenty  days,  on  payment  of  those  costs.  The  executor 
and  heirs  then  made  a  motion  before  Judge  Morris,  showing 
that  the  first  action  is  on  an  award  for  a  large  sum  of  money, 
and  the  second  is  in  the  nature  of  a  cross  action  to  set  aside  the 
award,  and  that  the  executor  can  discover  no  present  available 
property  of  the  testator,  from  which  to  pay  costs.  Judge 
Morris  allowed  the  executor  and  devisees  to  answer  without 
the  present  payment  of  the  costs,  but  ordered  that  those  costs 
should  be  paid  out  of  the  estate  when  sufficient  assets  should 
come  into  the  hands  of  the  executor. 

It  is  no  objection  to  the  order  appealed  from,  that  it  was 
made  before  another  judge  than  the  one  before  whom  the 
original. order  was  made.  Both  orders  are  properly  the  acts 
of  the  same  court, — the  special  term, — and  not  of  the  judges. 
As  a  matter  of  courtesy,  the  judge  who  heard  the  last  motion, 
would  have  referred  it  to  Judge  Roosevelt,  if  he  had  been 
requested  to  do  so,  and  the  latter  had  had  leisure  to  attend 
to  it. 

The  last  motion  was  not  an  attempt  to  review  the  first  order, 
it  was  an^application  to  extend  the  time  of  payment  of  costs 
on  a  new  state  of  facts  not  before  presented  to  the  court.  It 
was  an  exercise  of  power  not  much  greater  than  that  daily 
used  in  the  extension  of  the  time  to  answer,  which  could 
unquestionably  have  been  allowed  in  this  case,  although  the 

order  as  is  usual,  had  prescribed  twenty  davs  as  the  "time  to 
18 


274  ABBOTTS'  PRACTICE  REPORTS. 


Curtis  a.  Leavitt. — Leavitt  a.  Blatchford. 


answer.  The  first  order  saved  the  executor  from  any  personal 
liability  for  the  costs,  and  made  the  costs  expressly  payable 
only  out  of  the  funds  of  the  estate,  and  so  was  based  on  the 
assumption  that  there  were  funds  of  the  estate  sufficient  to  pay 
those  costs  ;  and  on  this  assumption  it  proceeded  to  give  the 
defendant  leave  to  answer  on  payment  of  these  costs.  Now 
it  appears  that  that  assumption  was  incorrect  in  fact,  and  the 
order  appealed  from  merely  carries  out  what  the  original 
order  implies  would  have  been  the  direction  of  the  judge 
making  it,  if  the  facts  now  presented  had  been  made  known  to 
him.  It  can  hardly  be  doubted  that  on  a  motion  to  resettle 
his  order  with  these  facts  before  him,  he  would  have  cor- 
rected the  order  so  as  to  conform  to  the  last  order. 

Here  the  executor  and  the  infants  must  abandon  a  defence 
to  a  claim  for  many  thousand  dollars,  unless  such  relief  be 
granted  to  them.  Nor  will  this  indulgence  encourage  pro- 
tracted litigation.  If  after  one  failure  of  this  kind,  the  execu- 
tor commit  another,  it  would  be  evidence  that  his  defence 
was  not  conducted  in  that  spirit  which  should  entitle  him  to 
such  indulgence  again. 

The  order  appealed  from  should  be  affirmed  without  costs. 


CURTIS  a.  LEAVITT.— LEAVITT  a.  BLATCHFORD. 
Su/preme  Court,  First  District,  General  Term  •  February,  1855. 

SPECIAL  RECEIVERS. — THEIR  RIGHT  TO  INSTRUCTIONS. — SECURITY 

ON  APPEAL. 

A  special  receiver  appointed  in  the  course  of  an  action,  to  take  custody  of  a  fund  in 
suit,  is  an  officer  of  the  court,  and  as  such  is  entitled  to  the  instructions  of  the 
court  when  the  question  is,  what  is  his  duty  under  the  orders  made  in  the  cause. 

It  seems,  that  a  judgment  directing  the  payment  of  money  out  of  a  fund  in  court,  is 
not  a  judgment  directing  the  payment  of  money,  within  the  meanincr  of  §  335  of 
the  Code  relating  to  the  stay  of  execution  on  appeal. 

Application  to  the  court,  by  a  special  receiver,  for  instruc- 
tions. 

The  facts  on  which  the  application  was  based,  are  stated  in 
the  opinion. 


NEW-YOKE.  275 


Curtis  a.  Leavitt. — Leavitt  a.  Blatchford. 


W.  C.  JVbyes,  for  plaintiffs. 
Ctecweland  &  Titus,  for  defendants. 
B.  W.  Bonney,  for  the  special  receiver. 

MITCHELL,  P.  J. — In  December,  1842,  John  J.  Palmer,  after 
these  two  suits  were  instituted,  was  appointed  special  receiver 
to  take  and  hold,  under  the  direction  of  the  court,  certain  pro- 
perty formerly  of  the  North  American  Trust  and  Banking 
Company.  The  special  receiver  collected  $1,100,000  and 
upwards,  and  deposited  it  in  the  New  York  Life  Insurance 
and  Trust  Company,  and  still  has  a  large  amount  of  property 
not  yet  converted  into  money.  After  a  long  controversy,  a 
decree  was  made  in  both  causes,  sustaining  the  claims  of 
creditors  under  the  trust  instruments  executed  by  the  com- 
pany, and  directing  the  special  receiver,  out  of  the  proceeds 
of  securities  in  his  hands^  to  pay  the  costs,  &c.,  of  the  parties 
in  these  actions,  and  afterwards  to  pay  out  of  said  securities 
to  Palmer,  McKillopp,  Dent  &  Co.,  the  amount  due  to  them 
on  certain  trust  bonds,  amounting,  with  interest,  to  more  than 
a  million  of  dollars,  rateably  with  certain  other  creditors ; 
and  with  directions  also,  out  of  the  securities,  to  make  other 
payments. 

Mr.  Leavitt  is  not  a  receiver  appointed  in  these  causes,  but 
was  appointed  receiver  before  these  causes  were  instituted,  on 
account  of  the  insolvency  of  the  company.  He  is  not,  there- 
fore, bound  (as  Mr.  Palmer,  the  special  receiver  in  this  cause, 
may  be,  when  he  is  not  interested)  to  obey  orders  made  in 
this  cause,  in  which  he  is  a  party,  without  appealing  from 
them.  Mr.  Leavitt  has  the  same  right  to  appeal  from  any 
order  made  as  to  the  funds  belonging  formerly  to  the  com- 
pany, as  any  other  party  to  the  suit  has,  to  the  extent  of  the 
interests  which  he  represents.  He  has  appealed  from  the 
decree  of  this  court  to  the  Court  of  Appeals,  and  has  given 
security  only  in  the  sum  of  $250,  and  under  section  334  of  the 
Code.  He  next  gave  notice  to  the  special  receiver  that  he 
had  so  appealed,  and  that  he  forbade  any  payments  being 
made  under  that  decree.  The  counsel  for  Curtis,  Blatchford  & 
Co.,  trustees,  and  for  Palmer,  McKillop,  Dent  &  Co.,  and  for 


276  ABBOTTS'  PRACTICE  REPORTS. 


Curtis  a.  Leavitt. — Leavitt  a.  Blatchford. 


others,  gave  notice  to  him  that  they  insisted  on  payment  under 
the  decree,  as  they  regarded  the  security  as  inadequate  to 
operate  as  a  stay  of  proceedings. 

The  special  receiver  applies  for  instructions.  He  is  an 
officer  of  the  court  as  much  so  as  the  clerk  of  the  court  would 
be  if  he  held  the  funds,  and  so  is  entitled  to  the  instructions 
of  the  court,  when  the  question  is  what  is  his  duty  under  the 
orders  of  the  court;  in  other  words,  what  do  those  orders 
mean  under  this  state  of  facts  ? 

Section  335  of  the  Code  declares  that  if  an  appeal  be  from 
a  judgment  directing  the  payment  of  money,  it  shall  not  stay 
the  execution  unless  an  undertaking  be  executed  on  the  part 
of  the  appellant  to  the  effect  that  if  the  judgment,  or  any  part 
thereof,  be  affirmed,  the  appellant  will  pay  the  amount 
directed  to  be  paid,  or  the  part  of  such  amount  as  to  which 
the  judgment  shall  be  affirmed,  and  all  damages  which  shall 
be  awarded  against  him  upon  the  appeal.  The  appellant  has 
not  attempted  to  comply  with  the  requirements  of  this  section., 
and  insists  that  it  is  inapplicable  to  his  case ;  that  the  judg- 
ment in  this  case  is  not  a  judgment  directing  the  payment  of 
money,  and  that  since  it  does  not  direct  him  to  pay  money, 
but  that  it  be  paid  out  of  certain  funds  in  the  hands  of  the 
special  receiver,  a  section  requiring  an  appellant  to  undertake 
that  if  the  judgment  should  be  affirmed  he  would  pay  the 
amount  directed  to  be  paid  and  all  damages,  could  not  apply 
to  one  situated  as  he  is.  The  respondents  insist  that  the  decree 
is  for  the  payment  of  money,  and  so  within  the  literal  terms  of 
this  section ;  that  a  different  construction  would  enable  any  one 
in  a  similar  case  by  a  frivolous  appeal  for  which  there  were 
no  grounds,  to  stay  the  execution  of  a  decree ;  and  that,  if 
before  the  Code  such  a  license  were  allowed  under  similar 
decrees,  it  was  under  the  idea  that  then  such  a  construction 
was  necessary,  or  executors,  administrators,  trustees,  and  "  other 
persons  acting  in  another's  right,"  could  not  stay  execution  in 
any  case  without  such  a  bond ;  but  that'  now  under  the  Code, 
the  court  below  may  in  its  discretion,  dispense  with  any  secu- 
rity from  those  classes  of  persons,  or  limit  the  amount  of  the 
security  to  be  given.  , 

There  is  much  in  this  argument  of  the  respondents  to  deserve 


XEW-YORK.  277 


Curtis  a.  Leavitt. — Leavitt  a.  Blatchford. 


the  serious  consideration  of  the  court,  if  the  question  has  not 
"been  substantially  passed  upon  already  in  former  cases  in  the 
'court  of  chancery.  But  if  that  court  has  decided  the  point,  it 
"is  most  proper  for  us  not  to  reconsider  it,  but  leave  a  higher 
court  to  determine  it,  as  both  parties  admit  that  our  decision 
is  appealable. 

Section  334  of  the  Code  is  substantially  like  section  80  of  2 
Rev.  Stats.,  605,  as  to  appeals  from  the  Court  of  Chancery  to  the 
'Court  for  the  correction  of  Errors;  and  section  335  of  the 
Code,  like  section  82  of  2  Rev.  Stats.  606.  The  Revised  Statutes 
•not  having  provided  for  the  security  to  be  given  on  appeal  from 
the  Yice-Chancellor  to  the  Chancellor,  so  as  to  be  a  stay,  the 
Chancellor  made  the  116th  rule  of  1844,  which  is  in  effect  the 
same  as  sections  80  and  82,  of  2  Rev.  /Stats.,  605  and  606. 

In  Quackinbush  v.  Leonard,  (10  Paige,  131),  the  Chan- 
cellor held  that  a  decree  in  a  suit  for  the  redemption  of  a  mort- 
gage, directing  the  money  due  on  the  mortgage  to  be  paid,  or 
that  the  bill  be  dismissed,  was  not  a  decree  for  the  payment  of 
money,  so  as  to  require  the  plaintiff  on  appealing  from  his 
decree  to  the  Court  for  the  Correction  of  Errors  to  give  a  bond 
for  the  payment  of  the  money  mentioned  in  the  decree,  because 
it  was  not  a  decree  upon  which  an  execution  could  be  issued 
for  the  money.  He  also  held  that  (the  mortgagee,  the  respond- 
ent, being  in  possession  of  the  lands)  the  appellant  was  not 
bound  to  give  bond  for  the  payment  of  rents  and  against  waste, 
under  sec.  85  of  2  Rev.  Stats.,  606,  which  requires  such  bond- 
to  be  given  if  the  decree  directs  the  sale  or  delivery  of  the 
possession  of  any  real  property. 

In  Wright  v.  Miller  (3  Barb.  CJi.  R.,  382)  the  decree  of  the 
vice  chancellor  directed  E.  "W.  Miller  to  convey  to  trustees 
to  be  appointed,  part  of  certain  trust  property,  and  that 
on  the  coming  in  and  confirmation  of  the  master's  report, 
he  should  pay  the  amount  which  should  be  reported  necessary 
-to  make  good  the  trust  estate.  Miller  appealed  to  the  chan- 
cellor, but  gave  a  bond  only  in  $250  for  costs  and  damages, 
and  insisted  that  the  master  could  not  proceed  on  the  refer- 
ence ;  the  vice  chancellor  decided  that  the  master  should  pro- 
ceed. The  chancellor  held  that  the  decree  was  final ;  that  as 
the  new  trustees  were  not  appointed  when  the  appeal  was 


278  ABBOTTS'  PRACTICE  REPORTS. 

Curtis  a.  Leavitt. — Leavitt  a.  Blatchford. 

taken,  and  it  could  not  then  be  known  what  would  be  the  defi- 
ciency which  Miller  would  be  bound  to  reimburse,  the  bond 
given  was  sufficient  to  stay  the  proceedings  in  the  court  below ; 
and  that  except  as  to  the  costs  to  be  paid  by  the  defendant,  this 
was  not  a  decree  for  the  payment  of  money  within  the  intent 
and  meaning  of  the  82d  section  of  2  Rev.  Stats.,  606,  so  as  to 
make  it  necessary  to  give  security  to  pay  the  amount  described, 
before  the  coming  in  and  confirmation  of  the  master's  report, 
showing  that  some  money  was  to  be  paid  ;  that  it  was  not  a 
decree  directing  the  payment  of  money  absolutely,  and  merely 
referring  it  to  the  master  to  compute  the  amount  due  (p.  389), 
but  that  the  case  would  be  different  if  the  decree  directed  the 
payment  of  costs  which  had  not  been  taxed,  or  of  the  amount 
due  upon  a  bond  and  mortgage,  which  was  a  mere  matter  of 
computation  (p.  390),  as  in  Coithe  v.  Crane,  (1  Bar!).  Ch.  JR., 
21).  The  chancellor  acknowledged  the  imperfection  of  the 
Revised  Statutes,  as  thus  interpreted,  and  that  the  necessary 
effect  was  that  appeals  were  often  brought  for  the  mere  pur- 
pose of  delay  and  vexation. 

Previous  to  these  cases,  the  same  question  had  arisen  in  the 
City  Bank  v.  Bangs  (4  Paige,  285).  That  was  an  mterpleaded 
suit,  and  the  amount  in  controversy  was  paid  into  court,  and 
invested  by  the  assistant  registrar.  The  vice  chancellor  awarded 
the  whole  fund  to  Bangs,  and  directed  the  other  defendants  to 
pajf  to  him  certain  portions  of  the  master's  costs,  on  the  refer- 
ence, and  that  execution  issue  for  such  costs.  Two  of  these 
defendants  appealed  from  this  order  or  decree,  and  gave  bonds 
in  $100  only,  to  pay  costs  and  damages  that  might  be  awarded 
against  them  on  the  appeal ;  but  they  gave  no  security  as  to 
the  amount  in  court,  nor  as  to  the  costs.  The  chancellor  held 
that  section  82  of  2  Rev.  Stats.,  606,  "  evidently  was  only 
intended  to  apply  to  those  cases  in  which  some  of  the  parties 
in  the  cause  were  directed  by  the  decree  to  pay  money,  or 
were  personally  charged  with  the  payment  of  a  loss  which  had 
arisen  :  or  which  might  arise,  in  relation  to  a  fund  in  court ; " 
and  that  the  loss  of  interest  on  the  fund  might  be  covered  by 
the  bond  given,  but  that  new  bonds  should  be  given  as  secu- 
rity for  payment  of  the  costs  awarded  against  the  defendants, 
personally. 


NEW-YORK.  279 


Curtis  a.  Leavitt. — Leavitt  a.  Blatchford. 


Thus  there  seems  to  have  been  a  uniform  course  of  decision 
on  the  equity  side  of  this  court,  as  to  the  construction  of  the 
similar  clause  in  the  Revised  Statutes,  since  the  year  1833 ; 
and  this  court  ought  hardly  to  depart  from  that  course,  unless 
a  manifest  error  had  been  committed,  or  there  were  no  means 
of  correcting  our  error  by  appeal.  The  principle  seems  to  be 
that  a  judgment  directing  the  payment  of  money  out  of  a  fund 
in  court  is  not  a  judgment  directing  the  payment  of  money 
within  the  statutes  as  to  stay  of  execution  on  appeal. 

The  appellants  referred  to  section  285  of  the  Code,  as  illus- 
trating section  335.  Section  285  is,  that  when  a  judgment 
requires  the  payment  of  money,  or  the  delivery  of  real  or  per- 
sonal property,  it  may  be  enforced  by  execution  ;  and  that 
when  it  requires  the  performance  of  any  other  act,  a  copy  of 
the  judgment  may  be  served  and  disobedience  punished  as  a 
contempt ;  and  it  was  argued  with  some  force,  that  the  lan- 
guage of  the  two  sections  was  similar,  and  that  the  perform- 
ance of  the  decree  in  this  case  would  not  be  enforced  by  exe- 
cution, as  a  decree  directing  the  payment  of  money  by  one  per- 
sonally would  be,  but  by  service  of  a  copy  of  the  judgment; 
and  if  so,  this  was  not  a  decree  directing  the  payment  of 
money,  but  according  to  section  285  a  decree  "  requiring  the 
performance  of  some  other  act."  Somewhat  similar  language 
occurs  in  section  129,  which  prescribes  the  notice  to  be  inserted 
in  a  summons.  1st.  In  an  action  on  a  contract  for  the  recovery 
of  money  only,  that  the  plaintiff  will  take  judgment  for  the 
sum  specified  in  the  summons.  2d.  In  other  actions  that  the 
plaintiff  will  apply  to  the  court  for  the  relief  demanded  in  the 
complaint.  An  action  for  money  to  be  paid  out  of  a  fund 
would  fall  under  the  first  class — not  under  the  second.  The 
same  distinction  is  made  in  subdivisions  1  and  2  of  sec- 
tion 246. 

The  instruction  to  the  special  receiver  must  be,  not  to  pay 
any  sums  under  the  decree  of  this  court  until  the  appeal  shall 
be  decided,  or  the  further  order  of  this  court  or  of  the  Court 
of  Appeals.  The  special  receiver,  and  each  of  the  parties 
appearing,  will  be  allowed  their  costs  of  this  motion  to  be  paid 
(on  the  appeal  being  disposed  of)  out  of  the  funds  in  the  hands 
of  the  special  receiver. 


280  ABBOTTS'  PRACTICE  REPORTS. 

Meeks  a.  Noxon. 

MEEKS  a.  NOXON. 

Supreme  Court,  First  District  /  ^Special  Term,  Januai^y,  1855. 
SERVICE  OF  CIVIL  PROCESS. — ELECTION  DAT. 

Service  of  summons  upon  an  elector  on  election  day,  is  void. 

Motion  to  set  aside  judgment  and  subsequent  proceedings 
for  irregularity. 

The  defendant  was  an  elector  residing  in  Saratoga  County. 
The  summons  and  complaint  were  served  upon  him  by  the 
sheriff  of  the  county,  on  the  7th  November,  1854 ;  the  day  on 
which  the  general  election  of  the  State  was  held.  No  arrest 
was  made,  nor  was  any  contemplated.  Judgment  was  entered 
on  failure  to  answer,  on  the  2d  of  December  following.  This 
judgment  as  well  as  the  subsequent  proceedings  based  upon 
it,  were  now  sought  to  be  set  aside  for  irregularity  in  the  ser- 
vice of  the  summons. 

Stevens  &  Iloxie,  and  J.  C.  Mott,  for  the  motion,  cited  1 
Rev.  Stats.  Chap.  VI.  Title  1,  §  4. 

H.  D.  Townsend,  opposed.  It  was  held  by  Vice-Chan- 
cellor McCoun  in  Wheeler  a.  Bartlett,  (1  Edw.  Ch.  7?.  323), 
that  the  section  of  the  Revised  Statutes  above  cited  had 
reference  only  to  process  which  caused  duress. 

CLERKE,  J. — With  regard  to  the  service  of  civil  process  on 
election  day,  until  1842,  the  words  of  the  statute  were,  that 
"  no  civil  process  shall  be  served,  &c.,  on  either  of  the  days 
during  which  such  election  shall  be  held ;"  but  in  1842, 
(Laws  of  1842,  p.  109),  it  was  amended  so  as  to  read,  "  ISTo 
declaration  by  which  a  suit  shall  be  commenced,  or  any 
civil  process,  or  proceedings  in  the  nature  of  civil  process, 
shall  be  served,"  &c.  The  case  of  Wheeler  a.  Bartlett,  (1 
Edw.  Ch.  7?.,)  to  which  the  counsel  for  the  plaintiff  refers, 
was  decided  many  years  before  the  amendment.  In  that  case, 


NEW-YORK.  281 


Munn  a.  Barnum. 


the  Yice-Chancellor  says  "  that  the  section  (as  it  then  stood) 
has  reference  to  process  which  causes  duress."  I  doubt 
•whether  that  section  admitted  of  so  limited  an  interpretation. 
In  using  so  comprehensive  a  term  as  process,  it  may  be  well 
supposed'  that  -the  legislature  wished  to  provide  not  only 
against  arrest  or  duress,  but  against  any  molestation  that  might 
interfere  with  the  elector  in  performing  the  high  and  sacred 
duty  which  the  elective  franchise  imposes.  However  this  may 
be,  the  amendment  of  1842  sets  the  question  at  rest.  Commen- 
cing a  suit  by  declaration  caused  no  duress,  and  was  equiva- 
lent to  the  present  mode  of  commencing  an  action  by  sum- 
mons, when  there  is  no  order  of  arrest. 

The  present  case  conies  within  the  meaning  of  the  amended 
section ;  and,  as  the  summons  was  served  on  an  elector  on  a 
day  when  an  election  was  held,  the  process  and  all  the  pro- 
ceedings under  it  were  void.  It  is  unnecessary  to  consider  the 
other  question. 

Judgment  and  subsequent  proceedings  set  aside,  with  $10 
costs  of  motion. 


MUNN  a.  BARNUM. 

Supreme  Court,  First  District ;  Special  Term,  January,  1855. 
SHAM  ANSWER. — DEMURRER. 

Slight  circumstances  indicating  good  faith,  are   sufficient  to  prevent   a  verified 

answer  from  being  stricken  out  as  sham. 
The  defendant  cannot  demur  and  answer  to  the  same  matter. 

Motion  to  strike  out  an  answer  as  sham. 

This  action  was  brought  to  recover  tLe  price  agreed  to  be 
paid  by  the  defendant  to  Orson  D.  Munn  and  others,  plaintiffs, 
for  two  hundred  and  twenty-three  shares  of  the  stock  pf  the 
Crystal  Palace  Association,  at  seventy-one  dollars  per  share. 

It  appeared  from  the  complaint  that  the  plaintiffs  had,  in 
the  spring  of  1854,  commenced  a  suit  against  the  Crystal 
Palace  Association  for  the  purpose  of  preventing  the  payment 
of  certain  debts  alleged  to  have  been  illegally  contracted  by 


282  ABBOTTS'  PRACTICE  REPORTS. 

Munn  a.  Barnum. 

them.  They  obtained  an  injunction  restraining  such  payment. 
The  defendant,  having  been  then  elected  President  of  the 
Association,  and  being  desirous  to  compromise  the  litigation, 
agreed  to  purchase  from  the  plaintiffs  the  shares  of  the  stock 
which  they  then  held,  and  which  they  stated  to  be  two  hun- 
dred and  twenty-three  in  number,  at  the  price  above  stated,  in 
consideration  of  their  withdrawing  proceedings  against  the 
Association. 

The  answer,  which  was  verified,  alleged  that  the  defendant 
was  induced  to  enter  into  the  contract  by  fraud,  and  that  the 
plaintiffs  did  not,  at  the  time  of  making  the  contract,  own  so 
much  of  the  stock  as  they  represented,  but  purchased  it  -after- 
wards when  the  stock  was  sold  at  a  much  lower  rate.  It  also 
contained  a  clause  demurring  to  a  part  of  the  relief  sought. 

Mr.  0'  Gorman,  for  the  motion. 
Mr.  Platt,  opposed. 

MITCHELL,  J. — There  is  some  reason  to  suppose  that  the 
answer  was  not  put  in  good  faith,  and  that  what  is  stated  as 
on  information  and  belief,  was  never  communicated  to  the 
defendant.  He  says  he  believed  it  from  an  examination  of 
the  books  of  the  company — that  examination  might  lead  to  a 
suspicion  that  the  plaintiffs  did  not  own  the  stock,  but  is  very 
slight  evidence  of  the  fact.  /  It  is  enough,  however,  to  prevent 
his  answer,  sworn  to  by  him,  and  now  substantially  reaffirmed 
by  affidavits,  from  being  treated  as  sham.  (Mier  v.  Cartledge, 
8  Sorb.,  75,  Caswell  v.  Bushnell,  U  Sari.,  393). 

After  the  decision  in  the  last  case,  this  court  adopted  in  this 
district  a  rule  to  give  a  preference  on  the  Circuit  Calendar  to 
causes  in  which  there  was  reason  to  believe  that  the  defence 
was  put  in  for  delay.  The  plaintiffs  may  probably  obtain 
relief  in  that  way. 

The  answer  sets  up  a  custom  as  to  the  mode  of  transferring 
the  stock.  It  very  probably  can  have  no  influence  on  the 
case ;  but  that  may  be  better  settled  at  the  Circuit  than  on  this 
special  motion. 

The  aaswer  concludes  by  demurring  to  part  of  the  relief 
sought.  The  defendant  cannot  demur  and  answer  to  the  same 


NEW-YORK.  283 


Binney  a.  Le  Gal. 


matter ;  he  must,  unless  he  elect  to  waive  his  answer,  strike 
out  this  demurrer.     The  evil  of  allowing  it  to  remain,  is  that 
the  plaintiffs  might  feel  bound  to  have  the  demurrer  passed  on 
before  he  could  go  to  trial. 
No  costs  are  given  to  either  party. 


BINNEY  a.  LE  GAL. 

Supreme  Court,  First  District;  General  Term,  February,  1855. 
PARTNERS. — AUTHORITY  IN  Suns. 

A  judgment  entered  up  against  two  partners  upon  an  offer  in  writing  made  by  one, 
will  be  set  aside  as  irregular  as  against  the  other,  unless  there  is  evidence  from 
which  it  may  be  inferred  that  he  authorized  or  ratified  tho  offer. 

Appeal  from  an  order  at  special  term,  setting  aside  a  judg- 
ment and  subsequent  proceeding  upon  terms. 

Judgment  in  this  action  was  entered  against  both  defend- 
ants, Le  Gal  and  Borland,  upon  an  offer  made  by  Le  Gal,  to 
allow  the  plaintiff  to  take  judgment.  Borland  moved  to  set 
the  judgment  and  execution  aside.  Being  required  to  give 
security  as  the  condition  on  which  this  relief  would  be  granted, 
he  appealed  to  the  general  term.  The  facts  in  detail  are 
stated  in  the  opinion. 

MITCHELL,  J. — The  defendants  are  partners,  and  (so  far  as 
the  affidavits  show),  are  indebted  to  the  plaintiff  for  moneys 
of  his  applied  in  the  use  of  the  firm  by  the  concurrence  of 
both  defendants.  A  summons  in  this  action-  was  served  on 
Le  Gal  on  the  20th  of  February,  1854,  and  on  Borland  on  the 
same  or  following  day.  On  the  22d,  Le  Gal,  alone,  but  in 
the  name  of  the  firm,  and  signing  for  both  defendants,  made  a 
written  offer  that  the  plaintiff  might  take  judgment  for  $1000 
with  interest  and  costs.  This  was  accepted  on  the  24th,  and 
on  the  same  day  judgment  was  entered  and  execution  issued  ; 
when  it  was  discovered  that  Borland  had  assigned  the  stock 
on  the  23d  of  the  month,  and  that  the  assignee  was  in  possession. 

Borland  moved  promptly  to  set  aside  the  judgment  and 
execution  as  against  him,  and  this  was  .granted,  but  only  on 


284  ABBOTTS'  PRACTICE  REPORTS. 

Binney  a.  Le  Gal. 

the  condition  that  he  should  give  security  to  pay  the  amount 
of  any  recovery  against  him.  He  appeals  ;  and  the  question 
is, — is  the  judgment  regular  as  against  him? 

The  plaintiff's  attorney  says  in  an  affidavit  used  on  the 
motion,  that  on  the  twenty-third  of  February,  he  "  served  the 
defendants  with  a  notice  of  acceptance  of  the  offer."  Borland 
says  in  his  affidavit  that  he  was  informed  on  the  twenty-eighth 
of  February,  that  Le  Gal  had  made  the  offer.  This  last  affi- 
davit was  served  on  the  plaintiff's  attorney,  and  he  does  not 
deny  that  the  twenty-eighth  was  the  first  day  on  which  Bor- 
land received  notice  that  the  offer  had  been  made ;  he  pro- 
bably used  the  general  terms  "  he  served  the  defendants  with 
notice  of  the  acceptance,"  on  the  ground  that  Le  Gal  was 
regarded  by  him  as  the  representative  of  both,  and  that  ser- 
vice on  him  was  service  on  both.  It  is  to  be  inferred  that  no 
notice  of  acceptance  was  served  on  Borland. 

Since  this  case  was  decided  at  special  term,  the  subject  of 
the  right  of  one  partner  to  bind  another  in  a  suit  of  law  has 
been  before  the  court  at  general  term  in  Everson  a.  Gehrman,* 
decided  December,  1S64,  and  it  was  held  that  he  had  no  such 
power  when  acting  against  the  wishes  of  his  co-partner,  and 
that  his  implied  power  was  only  to  act  in  suits  at  law  accord- 
ing to  the  express  or  implied  wish  of  such  co-partner.  Here 
both  partners  were  at  hand,  the  plaintiff  or  his  attorney  had 
spoken  with  both  as  to  some  arrangement  of  this  action,  and 
Borland  had  told  the  plaintiff's  attorney  that  he  had  the  entire 
management  of  the  business  affairs  of  Le  Gal  and  Borland, 
and  that  he  could  not  then  settle  the  debt,  but  that  if  he  could 
raise  half  the  debt  he  would,  if  Le  Gal  would  raise  the  rest, 
and  his  counsel  should  approve  it;  (see  La  Bau's  affidavit). 
The  plaintiff  was  thus  notified  that  Borland  was  the  manager 
of  this  matter,  and  so  far  from  committing  his  interest  in  it  to 
Le  Gal,  he  claimed  to  control  the  business,  and  had  his  own 
counsel  to  act  for  him.  Borland,  therefore,  did  no  act  to 
lead  the  plaintiff  to  suppose  that  Le  Gal  might  act  for  him, 
but  did  directly  the  contrary.  Under  these  circumstances  Le 
Gal  had  no  power  to  make  the  offer,  except  for  himself,  and 

*  Ante,  165. 


NEW-YORK.  285 

Gorum  a.  Carey. 

the  judgment  was  irregular  as  to  Borland,  and  should  be  set 
aside  as  against  him  without  any  condition.  One  partner  has 
no  power  to  make  the  offer  to  the  plaintiff  to  take  judgment 
under  the  Code  on  behalf  of  himself  and  his  co-partner,  with- 
out some  evidence  from  which  it  is  to  be  inferred  that  his 
co-partner  authorized  him  to  make  the  offer,  or  assented  to  it. 
"Where  an  attorney  appears  for  both,  and  there  is  no  contri- 
vance in  employing  him  to  appear,  his  appearance  on  the 
record  may  make  the  judgment  regular. 

The  order  appealed  from  should  be  modified  accordingly 
without  costs. 


•  GORUM  a.  CAREY. 

New  York  Common  Pleas ;  Special  Term,  March,  1855. 
FACTORS. — RIGHT  OF  ACTION. — VARIANCE. 

An  action  for  conversion  will  lie  at  suit  of  a  factor  who  has  stored  property  con- 
signed to  him,  with  a  third  party,  from  whose  possession  it  has  been  taken  by  a 
wrong  doer. 

Averment,  that  property  belonged  to  plaintiff.  Proof,  it  was  consigned  to  plaintiff 
as  a  factor,  he  being  chargeable  with  its  value  whether  sold,  lost,  or  destroyed. 
Held,  no  material  variance. 

Motion  for  a  new  trial. 

This  was  an  action  for  damages  for  taking  a  quantity  of 
ultra  marine  blue,  belonging  to  the  plaintiff,  and  valued  in  the 
complaint  at  $153. 

On  the  trial  of  the  cause,  it  appeared  in  evidence  that  the 
plaintiff  at  the  time  of  the  alleged  conversion  carried  on  a 
commission  business  in  paints  and  ultra  marine  blue.  The 
blue  referred  to  in  the  complaint  was  consigned  to  the  plaintiff 
for  sale,  and  was  by  him  stored  with  one  James  Byrne,  at  his 
store.  Byrne  subsequently  sold  out  to  the  defendant,  the 
stock,  fixtures,  &c.,  of  his  store,  mentioning  to  him  that  the 
boxes  of  blue,  were  there  on  storage,  and  were  not  included 
in  the  sale.  The  defendant,  however,  afterwards  sold  them. 

The  plaintiff  having  been  examined  by  the  defendant,  was 
asked  upon  cross  examination,  whether  he  was  not  charged  by 
his  consignors  with  the  value  of  all  the  blue  sent  to  him,  and 
required  to  pay  for  it,  whether  sold,  lost,  or  destroyed.  The 


286  ABBOTTS'  PEACTICE  EEPOKTS. 

Gorum  a.  Carey. 

question  was  objected  to,  but  allowed,  and  exception  taken. 
The  plaintiff  replied  that  he  was  so  charged. 

The  defendant  asked  a  dismissal  of  the  complaint,  on  the 
ground : 

That  the  plaintiff  had  no  such  interest  in  the  goods  at  the 
time  of  the  alleged  conversion  as  entitled  him  in  any  case  to 
recover.  , 

That  if  he  had  any  right  of  action,  it  was  by  virtue  of  a 
special  property  in  the  goods  which  should  have  been  set  up 
in  the  complaint. 

This  motion  was  denied  and  exception  taken  ;  and  the  jury 
having  found  for  the  plaintiff,  the  defendant  moved  for  a  new 
trial.  . 

S.  C.  Gerow,  for  the  motion. 
S.  B.  Bropliy,  opposed. 

DALY,  J. — There  could  be  no  doubt  of  the  plaintiff's  right 
to  maintain  an  action  in  his  own  name  for  the  conversion  of 
this  property  before  it  was  placed  upon  storage,  it  having 
come  into  his  possession  as  a  factor,  for  sale  on  commission. 
That  he  had  parted  with  the  actual  possession,  by  storing  the 
property  with  Byrne,  is  immaterial.  The  right  of  action  does 
not  depend  upon  the  fact  of  possession,  it  grows  out  of  the 
right  to  the  possession.  Thus,  where  goods  are  consigned  to  a 
factor,  he  may  bring  an  action  against  a  wrong  doer  for  con- 
verting them,  though  the  property  never  came  into  his  pos- 
session. It  is  Sufficient  that  it  was  the  intention  of  the  con- 
signor, that  a  special  property  should  vest  in  the  consignee  as 
a  security  for  advances  or  otherwise.  (Bryans  v.  Nix,  4  Mees. 
&  W.  775 ;  Evans  v.  Nichol,  4  Scott,  2f.  It.  43 ;  Russel  on 
Factors,  252).  And  so  an  action  for  conversion  will  lie  at  the 
suit  of  party  who,  having  the  possession  of  property  with  the 
consent  of  the  owner,  temporarily  places  it  in  the  hands  of  a 
third  party,  from  whose  possession  it  is  taken  by  a  wrong 
doer.  (Benton  v.  Hughes,  2  Bing.  173;  Button  v.  Buck, 
2  Taimt.  302) ;  which  is  substantially  the  present  case. 

The  averment  in  the  complaint  that  the  defendant  took  cer- 
tain property,  describing  it  as  belonging  to  the  plaintiff,  is  a 


NEW-YORK.  287 


Gorum  a.  Carey. 


sufficient  statement  of  the  plaintiff's  interest  or  of  his  possessory 
title.  It  is  not  alleging  that  he  was  the  absolute  owner  ;  or  if 
this  averment  should  be  treated  as  equivalent  to  an  allegation 
that  he  was  the  owner,  the  proof  shows  that  he  had  acquired 
such  an  absolute  title  to  the  property  as  would  enable  him  to 
bring  this  action. 

The  plaintiff  was  asked,  while  under  examination,  whether 
he  was  not  charged  and  required  to  pay  for  any  portion  of  the 
property  consigned  to  him  which  should  be  lost.  To  this 
question  the  defendant  objected.  The  objection  was  to  the 
nature  of  the  inquiry ;  for  there  is  nothing  appearing  in  the 
case  to  show  that  any  objection  was  made  to  the  form  of  the 
question,  and  as  the  inquiry  related  to  the  terms  or  conditions 
upon  which  the  plaintiff  acted  for  his  consignors  in  the  sale  of 
property  of  this  description,  the  inquiry  was  pertinent  and 
proper.  The  plaintiff  answered  that  they  charged  him  not 
only  with  what  was  sold,  but  also  with  what  was  lost  or 
destroyed.  If  by  the  understanding  that  subsisted  between 
him  and  his  consignors,  he  was  held  accountable  for  the  loss 
or  destruction  of  any  part  of  the  property  consigned  to  him, 
then  upon  the  conversion  of  this  property  by  the  defendant, 
the  plaintiff  became  liable  to  his  consignors  for  the  full  value 
of  it,  and  had  thereby  acquired  such  an  absolute  interest  in  it 
%s  to  entitle  him  to  bring  an  action  for  the  damages  he  had 
sustained  by  the  conversion  of  it.  (Booth  v.  Wilson,  1  Barn. 
&  Aid.,  58).  Either  upon  this  ground,  or  as  a  party  having  a 
special  property  in  the  goods  and  entitled  to  the  possession, 
the  plaintiff  was  the  real  party  in  interest  within  the  meaning 
of  the  Code. 

I  regret,  however,  that  I  shall  have  to  send  this  cause  back 
for  the  want  of  sufficient  proof  of  the  value  of  the  goods.  The 
only  witness  who  testified  upon  the  subject  of  value,  was 
acquainted  merely  with  the  value  of  foreign  blue.  He  stated 
that  the  foreign  blue  was  a  better  article  than  the  domestic, 
and  that  he  knew  nothing  about  the  value  of  the  domestic  arti- 
cle. There  was,  in  fact,  no  evidence  from  which  the  jury 
could  determine  the  value  of  the  property  converted,  and  the 
case  will  have  to  go  back  for  more  explicit  proof  upon  that 
point. 


288  ABBOTTS'  PRACTICE  REPOETS. 

Moran  a.  Anderson. 

MORAN  a.  ANDERSON. 

Supreme  Court,  Special  Term  •  March,  1855. 

PLEADING. — FEIVOLOUS  DEMUKREB. 

The  proper  mode  of  raising  an  objection  to  the  amount  of  the  plaintiff's  claim,  is  by 
answer. 

Motion  for  judgment,  on  account  of  the  frivolousness  of  a 
demurrer.  • 

This  was  an  action  against  the  acceptor  of  two  bills  of 
exchange.  The  complaint  contained  three  counts.  The  first 
claimed  interest  from  the  18th  of  August,  1854,  the  date  of  the 
delivery  of  the  bill  to  the  plaintiffs.  The  second  claimed 
interest  from  the  31st  of  August,  1854,  the  date  of  acceptance 
by  the  defendants,  and  the  third  claimed  as  damages  the  fees 
of  protest. 

To  this  complaint  a  demurrer  was  interposed,  that  the  com- 
plaint  did  not  state  facts  sufficient  to  constitute  the  cause  of 
action  therein  alleged.  The  plaintiffs  moved  for  judgment,  on 
the  ground  of  frivolousness  of  the  demurrer.  The  only  ques- 
tion was  as  to  the  claim  of  interest  and  protest  fees. 

Lebbeus  Chapman,  Jr.,  for  the  motion. 
J.  Coit,  opposed. 

CLERKE,  J. — The  first  two  objections  to  the  complaint  are 
merely  objections  to  the  amount  of  damages  claimed,  and  this 
is  no  less  the  case  with  the  third. 

No  doubt  the  question  of  damages  in  lieu  of  exchange  and 
re-exchange,  ordinarily  arises  in  regard  to  the  drawer  and 
indorsers;  but  the  acceptor  is  liable,  at  all  events,  for  the 
expenses  of  the  protest,  with  interest. 

The  third  objection  therefore  is  also  a  mere  objection  to  the 
amount  claimed,  which  of  course  can  be  taken  advantage  of 
by  answer,  and  adjusted  at  the  trial. 

Motion  granted,  with  liberty  to  defendants  to  answer  in  ten 
days,  on  paying  $10  costs. 


NEW-YORK.  289 


Fry  a.  Bennett. 


FRY  a.  BENNETT. 

New  York  Superior  Court  /  General  Term,  February ',  1855. 
Again  March,  1855. 

DEPOSITIONS  DE  BENE  ESSE. — VINDICTIVE  DAMAGES. 

What  is  satisfactory  proof  of  the  inability  of  a  witness  to  attend  a  trial,  for  the 
purpose  of  rendering  his  deposition  taken  de  bene  esse,  admissible. 

In  an  action  against  the  proprietor  of  a  newspaper  for  libel,  an  article  published  in 
his  newspaper,  if  sufficiently  connected  with  the  defendant  by  proof,  may  be  read 
in  evidence  to  show  the  circulation  of  the  paper,  and  the  proprietor's  income 
from  it. 

In  an  action  for  libel  where  actual  malice  has  been  proved,  the  jury  are  at  liberty 
to  give  vindictive  damages. 


After  a  new  trial  is  ordered,  for  error  in  admitting  a  deposition  upon  insufficient 
proof  that  the  witness  was  absent  from  the  State,  a  motion  .jjaf  leave  to  supply 
such  proof  and  thus  cure  the  defect,  will  not  be  granted. 

I.  February. — Motion  for  a  new  trial. 

This  was  an  action  brought  by  Edward  P.  Fry,  manager  of 
an  Italian  Opera  Company,  against  James  Gordon.  Bennett, 
editor  and  proprietor  of  the  New  York  Herald,  for  the  publi- 
cation of  twelve  successive  libels  upon  the  plaintiff  in  his 
private  character,  and  as  manager  of  the  opera. 

A  demurrer  to  the  answer  of  defendant  was  interposed, 
upon  which  the  plaintiff  had  judgment  (5  Sand.  54),  the  usual 
leave  to  amend  being  given. 

An  amended  answer  having  been  put  in,  the  cause  came  on 
to  be  tried  before  Ch.  J.  Oakley  and  a  jury,  on  Dec.  5, 
1853,  the  trial  continuing  eight  days. 

In  the  course  of  the  trial  the  counsel  for  the  plaintiff  called 
as  a  witness,  Sheridan  Corbyn,  who  testified  : — "  I  am  acquaint- 
ed with  Maurice  Strakosch ;  he  is  in  Cincinnati,  Ohio."  On 
cross-examination,  he  said,  "  I  last  saw  him  six  weeks  ago, 
here  ;  his  wife  told  me  he  had  gone  to  Cincinnati.  I  inquired 
for  him  this  morning.  She  did  not  tell  me  when  he  went. 

That  is  all  the  knowledge  I  have." 

19 


290  ABBOTTS'  PKAOTICE  KEPORTS. 

Fry  a.  Bennett. 

The  counsel  for  plaintiff  then  offered  to  read  the  deposition 
of  Maurice  Strakosch,  which  had  been  taken  de  bene  esse,  prior 
to  the  trial.  Defendant's  counsel  objected  on  the  ground  that 
the  absence  of  Strakosch  had  not  been  sufficiently  proved. 

The  objection  was  overruled  and  the  deposition  read,  under 
exception. 

The  counsel  for  plaintiff  also,  in  the  course  of  the  trial,  offer- 
ed to  read  in  evidence  an  article  from  the  New  York  Herald, 
of  Dec.  16,  1851,  for  the  purpose  of  showing  the  circulation  of 
the  paper  in  1848  and  1849,  in  which  years  the  alleged  libels 
were  published,  and  its  income.  The  counsel  for  defendant 
objected,  on  the  ground  that  the  defendant  was  in  no  way 
connected  with  it  by  proof,  and  that  it  was  irrelevant.  The 
judge  overruled  the  objection  and  the  defendant's  counsel 
excepted.  The  article  was  then  read. 

The  counsel  for  defendant  requested  the  judge  to  charge  the 
jury: 

That  if  they  should  find  any  ground  in  this  case  for  giving 
damages  to  the  plaintiff  against  the  defendant,  their  verdict 
should  be  for  such  sum  only  as  would  compensate  the  plain- 
tiff for  the  injury  which  he  has  sustained  ;  and  that  the  jury 
were  not  at  liberty  to  give  to  the  plaintiff  any  further  sum 
by  way  of  punishment  of  the  defendant,  or  by  way  of  vindic- 
tive damages,  or  as  smart  money. 

His  honor  declined  to  give  this  instruction.  Upon  the  ques- 
tion of  damages  his  charge  was  as  follows : 

"  The  plaintiff  here  has  not  proved  any  specific  loss  in  regard 
to  his  business  as  an  opera  manager ;  indeed  it  would  be  very 
difficult  to  prove  that  any  person  did  not  go  to  the  opera, 
because  the  plaintiff's  course  had  been  criticised  and  animad- 
verted upon  by  the  defendant. 

But  in  estimating  the  damages,  you  are  to  look  to  the  char- 
acter of  the  libels  and  the  business  of  the  plaintiff,  not  giving 
way  to  any  feeling  of  prejudice,  but  examining  the  whole 
matter  like  business  men,  and  so  drawing  your  inference  as  to 
damages.  It  has  been  contended  by  the  counsel  for  the 
defendant,  that  the  jury  are  not  at  liberty  to  go  beyond  what 
are  called  actual  damages.  As  I  understand  it,  that  has  not 


NEW-YOKE.  291 


Fry  a.   Bennett. 


been  the  course  pursued  by  the  courts  in  this  State  heretofore. 
What  it  may  be  hereafter,  I  cannot  say — in  regard  to  this 
matter,  it  strikes  me  that  there  must  be  some  qualification  to 
that  rule ;  because  the  consequence  of  it  would  be,  that  in  all 
cases  wherein  no  specific  injury  could  be  proved,  the  damages 
would  be  merely  nominal.  If  the  jury  in  this  case  were  not 
allowed  to  form  any  judgment  as  to  damages,  except  so  far  as 
the  plaintiff  proved  that  he  sustained  an  injury  in  dollars  and 
cents,  they  could  have  no  basis  on  which  to  stand  and  their 
verdict  would  be  merely  nominal.  I  have  always  held  the 
rule  in  such  cases  to  be,  that  the  jury  could  look  at  the  whole 
character  of  the  transactions,  and  that  they  could  take  into 
consideration  all  the  proof  before  them  of  any  malicious  and 
actual  intent  to  injure  the  plaintiff.  General  malice  against 
the  plaintiff  may  not  be  proved  ;  but  actual  malice  in  making 
the  publications  complained  of,  may  be  proved.  Malice,  so  far 
as  the  law  requires  it  to  exist  to  sustain  the  action,  is  always 
implied,  because  every  man  who  slanders  a  neighbor,  or  who 
publishes  a  libel  against  a  neighbor,  the  law  presumes  to  do  so 
from  malicious  motives.  There  may  be  a  different  rule  as  to 
damages,  where  there  is  actual  malice  existing ;  because,  if 
a  man  by  mistake,  publish  a  libel,  the  law  would  fix  malice 
upon  it  only  so  far  as  to  make  him  responsible  ;  but  it  would 
be  a  different  thing,  if  instead  of  publishing  it  by  mistake  he 
did  so  with  a  view  to  injure  the  plaintiff.  It  is  contended  that 
there  is  proof  of  that  kind  bearing  on  the  defendant,  and  it  is 
derived  altogether,  I  understand,  from  the  deposition  of  a 
German  witness,  Strakosch.  You  will  examine  that  evidence 
very  carefully,  and  see  whether,  taking  his  examination  in 
chief  and  his  cross-examination,  reliance  can  be  placed  upon 
the  representation  he  makes,  that  Mr.  Bennett  declared  his 
intention  to  finish,  or  otherwise  injure  and  break  down  the 
plaintiff.  If  it  should  come  up  to  that,  then  the  defendant 
stands  before  us  as  a  man  who  deliberately  undertook  to  do  an 
injury,  and  if  he  fail  to  prove  his  allegations  to  be  true,  he 
cannot  escape  with  nominal  damages.  The  whole  question  of 
damages  is  entirely  within  your  sound  discretion.  If  you  find 
for  the  plaintiff,  you  will  assess  such  damages  as  the  occasion 
requires." 


292  ABBOTTS'  PKACTICE  EEPOIITS. 

Fry  a.  Bennett. 

The  jury  having  found  a  verdict  for  the  plaintiff  for  $10,000 
damages,  the  defendant  moved,  at  special  term,  for  a  new  trial. 
His  motion,  was  denied  pro  forma  ;  he  appealed  to  the  general 
term. 

D.  D.  Field)  J.  Townsend  and  JB.  Galbraith,  for  appellant. 

A.  Z.  Jordan  and  F.  H '.  Sherman,  for  respondent. 

BY  THE  COURT. — BOSWORTH,  J. — The  points  most  strenu- 
ously insisted  upon  in  support  of  the  motion  for  a  new  trial, 
are  : — 

First.  That  neither  the  matter  stated  in  the  eighth,  nor  that 
stated  in  the  eleventh  cause  of  action,  and  alleged  to  have  been 
published  by  the  defendant,  is  libelous.  And  that  damages 
having  been  assessed  generally  on  all  the  causes  of  action  set 
forth  in  the  complaint,  the  judgment  must  be  reversed. 

Second.  That  the  deposition  of  Strakosch  was  improperly 
admitted  in  evidence. 

Third.  That  it  was  erroneous  to  allow  the  plaintiif  to  give 
evidence  of  the  income  realized  by  the  defendant  from  the 
publication  of  the  New  York  Herald. 

Fourth.  That  in  a  civil  action  for  a  libel,  a  jury  have  no 
right  to  give  punitive  damages,  or  damages  by  way  of  punish- 
ing a  defendant,  for  a  deliberate  purpose  to  injure  the  plaintiff,, 
wound  his  feelings,  and  subject  his  character  to  reproach ;  and 
that  the  court  erre4  in  refusing  to  charge  the  jury  that  dama- 
ges could  not  be  given  for  such  a  cause. 

Fifth.  That  the  damages  are  excessive,  and  that  the  defend- 
ant should  have  a  new  trial  on  that  account,  if  no  other. 

We  understand  the  court  to  have  decided,  when  this  case 
was  formerly  before  the  general  term,  that  the  matter  set  forth 
in  the  eighth  and  eleventh  counts,  and  in  each  of  them,  and 
alleged  to  have  been  published  by  the  defendant,  is  libelous. 
(Fry  v.  Bennett,  5  Sand.  S.  C.  7?.,  54,  56,  75). 

Of  either  count,  we  deem  it  sufficient  to  say  that,  assuming 
the  extrinsic  facts  which  are  averred  to  be  true,  the  words 
published  are  susceptible  of  the  construction  and  meaning 
imputed  to  them  by  the  pleader.  The  jury  having  found  these 
facts  to  exist,  and  that  the  words  were  used  in  the  sense  im- 


NEW-YOKE.  293 


Fry  a.  Bennett. 


puted  to  them,  the  judgment  cannot  be  disturbed  merely  on 
the  idea  that  either  of  these  counts  is  bad  in  substance. 

Strakosch  was  examined  de  ~bene  esse  as  a  witness  in  this 
action,  and  the  plaintiff  offered  his  deposition  in  evidence, 
after  having  proved  by  Sheridan  Corbyn  that  he  knew  Stra- 
kosch, and  last  saw  him  in  this  city  about  six  weeks  previously. 
That  on  the  morning  of  that  day  he  called  at  the  house  of 
Strakosch,  and  the  wife  of  the  latter  told  him  that  Strakosch 
had  gone  to  Cincinnati.  The  'defendant  objected  to  the  read- 
ing of  the  deposition  of  Strakosch,  on  the  ground  that  his 
absence  had  not  been  proved.  The  court  admitted  the  evi- 
dence, and  the  defendant  excepted. 

The  statute  on  the  subject  declares  that  such  a  deposition 
may  be  read,  "  after  it  shall  have  been  satisfactorily  proved 
that  such  witness  was  unable  to  attend  such  trial  or  assessment 
of  damages,  personally,  by  reason  of  his  death,  insanity,  sick- 
ness or  settled  infirmity,  or  that  he  has  continued  absent  out 
of  this  State,  so  that  his  attendance  at  such  trial  or  assessment 
of  damages  could  not  be  compelled  by  the  ordinary  process  of 
law."  The  right  to  read  this  deposition  depends,  in  this  case, 
upon  the  question,  whether  it  was  "  satisfactorily  proved  that 
Strakosch  had  continued  absent  out  of  the  State,  so  that  his 
attendance  at  the  trial  could  not  be  compelled  by  the  ordinary 
process  of  law."  By  satisfactory  proof,  must  be  meant  evi- 
dence recognized  by  law  as  competent  in  its  nature  to  prove 
the  fact,  and  sufficient  to  prima  facie  establish  it. 

The  witness,  Corbyn,  does  not  state  where  he  lived,  how 
often  he  had  been  in  the  habit  of  seeing  Strakosch,  nor  that 
his  relations  with  him,  nor  that  his  own  business  was  such  that 
he  would  have  been  likely  to  have  seen  him  had  he  been 
in  the  city  during  the  two  or  three  weeks  preceding  the  trial. 
He  does  not  appear  to  have  even  inquired  when  Strakosch  left 
for  Cincinnati.  For  aught  that  the  wife  of  the  latter  is  testified 
to  have  said,  he  might  as  well  have  left  the  previous  day  as 
before  the  cause  was  noticed  for  trial.  The  statute  requires 
proof  of  more  than  the  actual  absence  of  the  witness  from  the 
State  on  the  day  the  action  is  tried.  Such  a  continued  absence 
must  be  proved,  that  ordinary  diligence  to  procure  his  attend- 
,ance  by  process  of  law  would  be  ineffectual.  The  evidence  to 


294  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

give  a  right  to  read  the  deposition  must  be  such  as  would 
make  it  erroneous  to  reject  the  deposition.  Giving  to  the- 
declarations  of  Strakosch's  wife  the  fullest  effect,  no  one  can 
conjecture  from  it  when  Strakosch  left  the  State.  No  good 
reason  can  be  assigned  for  receiving  her  declarations  as  proof, 
when  she  might  have  been  called  to  testify  to  the  fact,  if  it 
was  as  she  is  represented  to  have  stated  it.  The  statute,  by 
requiring  the  fact  to  be  "  satisfactorily  proved,"  should  not  be 
construed  to  admit  of  mere  hearsay  evidence,  when  direct  and 
competent  evidence  appears  to  have  been  as  easily  attainable. 

In  Guyon  -y.  Lewis,  7  Wend.,  26,  the  deposition  was  taken 
and  cause  tried  before  the  existing  statute  was  enacted.  (Id. 
28).  The  deposition  was  taken  in  August,  1828,  and  the  cause 
was  tried  in  January,  1829.  The  plaintiff  testified  to  the  court 
that  the  witness,  immediately  after  being  examined,  told  the 
plaintiff  he  was  going  up  the  North  river,  and  expected  to 
leave  the  State  ;  that  previously  he  was  in  the  habit  of  seeing 
him,  but  had  not  seen  him  since.  (Id.,  28).  He  was  a  transient 
person  ;  had  no  fixed  habitation  anywhere,  and  was  a  journey- 
man carpenter,  seeking  employment.  That  was  held  sufficient. 
In  Jackson  v.  Rice,  3  Wend.,  180,  a  deposition  of  Richard 
Harrison,  taken  under  the  act  to  perpetuate  testimony,  (1  JRev. 
Laws,  455),  was  offered  in  evidence,  and  rejected.  The  pre- 
liminary proof  was  that  of  a  witness  who  proved  that  Mr. 
Harrison  was  between  seventy-five  and  eighty  years  of  age, 
and  that  the  witness  believed,  from  the  ill  state  of  his  health, 
and  the  infirmities  consequent  upon  his  advanced  age,  he  was 
unable  to  attend  at  the  circuit  as  a  witness.  He  had  not,  how- 
ever, seen  Mr.  Harrison  in  several  years,  and  did  not  person- 
ally know  the  state  of  his  health.  The  deposition  was  rejected. 
The  court  said,  "  for  aught  that  appeared,  he  might,  although 
eighty  years  of  age,  have  attended  the  court.  At  all  events, 
the  judge  was  not  bound  to  presume  him  unable  to  attend. 
The  plaintiff  should  not  rely  upon  presumption  where  it  was 
his  duty  to  produce  proof." 

In  Jackson  v.  Perkins,  2  Wend.,  308 — 315,  a  deposition  of 
Mrs.  Vischer,  taken  under  the  same  act,  was  offered  in  evi- 
dence. It  was  allowed  to  be  read,  on  a  stipulation  of  the 
plaintiff's  counsel  that  a  judgment  of  nonsuit  might  be  entered 


NEW -YORK.  295 


Fry  a.  Bennett. 


if  the  Supreme  Court,  on  a  case  made,  should  be  of  the  opinion 
that  the  deposition  ought  not  to  have  been  received.  The 
evidence  of  her  inability  to  attend  was,  that  she  was  over 
seventy-four  years  of  age  ;  and  one  of  the  witnesses  testified 
that  from  his  knowledge  of  her  situation  and  infirmities,  he 
believed  she  could  not  endure  a  journey  from  Albany  to  Og- 
densburg,  without  the  most  serious  injury  to  her  health.  This 
was  held  to  be  sufficient.  (See  Clarke  v.  Dibble,  16  Wend., 
601 ;  The  People  v.  Hadden,  3  De?i.,  225).  I  think  the  spirit 
of  these  decisions  requires  legal  proof,  as  contradistinguished 
from  mere  hearsay  evidence  or  belief,  especially  when  it  is 
apparent  that  it  is  as  easily  attainable  as  the  inferior  proof 
which  may  be  offered.  The  mere  declaration  of  a  third  per- 
son should  not  be  received  as  competent,  and  certainly  not  as 
satisfactory  proof  of  any  fact,  when  such  third  person  can  be 
as  easily  procured  to  testify  to  the  fact  as  the  one  offered  to 
prove  his  declaration  respecting  it.  In  this  case,  all  the  proof 
that  was  given  of  the  continued  absence  of  Strakosch  from 
the  State  was  the  declaration  of  his  wife  that  he  had  gone  to 
Cincinnati,  (not  saying  when  he  went),  and  that  the  witness 
had  not  seen  him  in  six  weeks.  (Robinson  v.  Marks,  2  3food. 
&  Malk.,  375,  and  1  Campb.  R.,  172). 

Allowing  such  testimony,  would  furnish  opportunity  for  col- 
lusion, and  violate  the  rule  that  mere  hearsay  evidence  is  in- 
admissible, without  the  slightest  necessity  for  it,  in  a  case  in 
which  it  was  just  as  feasible  to  call  the  party  who  made  the 
declaration  as  some  one  who  heard  it  made.  Testimony  by 
his  wife,  that  Strakosch  left  the  city,  avowedly  to  go  to  Cin- 
cinnati, stating  when,  that  she  had  not  seen  or  heard  from  him 
since,  or  had  received  letters  from  him  bearing  the  Cincinnati 
post  office  stamp,  would  undoubtedly  be  satisfactory  proof. 
We  are  of  the  opinion,  that  on  the  evidence  given,  the  plaintiff 
was  not  entitled  to  read  the  deposition. 

The  defendant  is  therefore  entitled  to  a  new  trial,  on  ac- 
count of  the  admission  of  this  deposition  in  evidence.  This 
conclusion  renders  it  unnecessary  to  pass  upon  any  of  the  other 
questions  argued  on  the  appeal,  except  such  as  may  arise  upon 
a  second  trial,*and  in  respect  to  which  the  ruling  of  the  court 
on  such  trial  may  properly  be  required. 


296  AUISOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

A  New  York  Herald,  of  the  date  of  Dec.  15,  1851,  purport- 
ing to  state  its  average  daily  circulation  from  1842  to  1851, 
inclusive,  and  the  annual  receipts  for  it  in  1835,  the  first  year 
of  its  existence,  and  also  in  the  year  1851,  was  offered  in  evi- 
dence "  for  the  purpose  of  showing  the  circulation  of  the 
Herald  in  the  years  1848-49,  and  the  income  of  the  office." 

It  was  objected  to,  "  on  the  ground  that  the  defendant  was  in 
no  way  connected  with  it  by  proof,  and  that  it  was  irrevelant." 
The  objection  was  overruled,  and  the  defendant's  counsel 
excepted.  It  was  then  read,  "  to  show  the  circulation  of  the 
paper  and  its  income."  The  proof  sufficiently  connected  the 
defendant  with  that  number  of  the  Herald.  The  paper  was 
"  relevant,"  and  was  competent  evidence  to  show  the  circula- 
tion of  the  Herald,  and  of  the  extent  to  which  the  libelous 
matter  had  been  published.  •  So  much  of  the  extract  read,  as 
related  to  this  point,  was  proper  evidence. 

The  objection  was  not  taken  that  the  passage  relating  to  the 
receipts  of  the  Herald  should  not  be  read,  but  the  objection 
was  to  the  whole  article.  In  not  attempting  to  discriminate 
between  the  different  points  of  it,  the  objection  seems  to  have 
assumed,  that  as  a  whole  it  was  not  admissible  for  any  purpose, 
and  the  ground  of  objection  taken,  was  that  it  was  irrelevant. 

Whether  the  part  relating  to  the  receipts  of  the  office,  if 
specially  objected  to,  should  have  been  excluded,  or  whether 
its  admission  can  be  seen  to  have  so  prejudiced  the  defendant 
that,  treating  this  as  a  motion  for  a  new  trial  on  a  case,  as  well 
as  an  appeal  from  the  judgment,  a  new  trial  should  be  granted, 
will  depend  upon  considerations  connected  with  the  charge  on 
the  subject  of  damages,  and  exceptions  taken  by  the  defendant 
to  the  refusal  of  the  court  to  charge  on  that  branch  of  the  case, 
as  requested. 

The  defendant  requested  the  court  to  charge  the  jury,  "that 
if  the  jury,  should  find  any  ground  in  this  case  for  giving 
damages  to  the  plaintiff  against  the  defendant,  their  verdict 
should  be  for  such  sum  only  as  would  compensate  the  plaintiff 
for  the  injury  he  has  sustained  therefrom,  and  that  the  jury  are 
not  at  liberty  to  give  to  the  plaintiff  any  further  sum,  by  way 
of  punishment  of  the  defendant,  or  by  way  of  vfhdictive  dama- 
ges, or  as  smart  money."  The  court  refused  so  to  charge,  and 


NEW-YORK.  297 


Fry  a.  Bennett. 


the  defendant  excepted.  It  is  not  contended  that  the  terms  of 
the  charge,  as  given,  are  particularly  exceptionable. 

The  jury  were  instructed  that  the  plaintiff  had  not  proved 
any  specific  loss  to  his  business  as  an  opera  manager.  "  In 
estimating  the  damages,  they  were  to  look  at  the  character  of 
the  libels  and  the  business  of  the  plaintiff,  not  giving  way  to 
any  feelings  of  prejudice,  but  examining  the  whole  matter  like 
business  men,  and  so  drawing  their  inference  as  to  damages. 
That  the  court  had  always  held  the  rule  in  such  cases  to  be, 
that  the  jury  could  look  at  the  whole  character  of  the  transac- 
tions, and  that  they  could  take  into  consideration  all  the  proof 
before  them  of  any  malicious  and  actual  intent  to  injure  the 
plaintiff;  that  it  was  contended  the  evidence  of  Strakosch 
proved  actual  malice,  and  an  intention  to  injure  the  plaintiff 
and  break  up  his  business.  They  would  examine  this  evi- 
dence carefully,  and  determine  whether  it  should  be  cred- 
ited, and  whether  they  could  '  rely  upon  the  representations  he 
makes,  that  Mr.  Bennett  declared  his  intention  to  finish,  or 
otherwise  injure  and  break  down  the  plaintiff.'  If  it  should 
come  up  to  that,  then  the  defendant  stands  before  us  as  a  man 
who  deliberately  undertook  to  do  an  injury  ;  and  if  he  fail  to 
prove  his  allegation  to  be  true,  he  cannot  escape  with'nominal 
damages.  The  whole  question  of  damages  is  entirely  within 
your  sound  discretion.  If  you  find  for  the  plaintiff,  you  will 
give  such  damages  as  the  occasion  requires." 

If  the  charge,  as  given,  was  not  erroneous,  and  was  as  favora- 
ble to  the  defendant  as  he  could  properly  require,  then  the 
question  arises  whether  there  wras  any  error  in  refusing  to  give 
the  instruction  sought,  or  whether  the  not  giving  of  it  may  be 
reasonably  inferred  to  have  been  a  substantial  prejudice  to  the 
defendant.  I  state  the  latter  alternative,  because  the  action  is 
before  us  upon  a  case,  as  well  as  upon  exceptions  to  the  deci- 
sions of  the  court. 

The  case  does  not  show  nor  state  any  thing  to  legally  justify 
the  inference  that  the  plaintiff  urged  the  jury  to  apply  any 
other  consideration  in  estimating  the  amount  of  damages  than 
those  which  the  charge,  as  given,  approved,  or  insisted  to  the 
court  that  any  instructions  should  be  given,  variant  from  those 
which  the  defendant  especially  asked  the  court  to  give,  unless 


298  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

it  is  to  be  inferred  from  the  fact  of  the  request  itself.  I  cannot 
believe  that  when  a  charge,  unexceptionable  in  itself,  has  been 
given,  it  is  error  not  to  go  further,  and  charge  a  proposition, 
which,  as  an  abstract  one,  is  sound,  when  the  converse  of  it 
has  neither  been  asserted  by  the  adverse  party  nor  its  applica- 
tion invoked  to  the  disposition  of  any  part  of  the  case. 

Unless  the  defendant,  in  his  request  to  the  court  to  charge 
that  in  addition  to  compensating  the  injury,  the  jury  were  not 
at  liberty  "  to  give  any  further  sum  by  way  of  punishment  of 
the  defendant,  or  by  way  of  vindictive  damages,  or  as  smart 
money,"  used  these  three  alternatives  as  synonymous  expres- 
sions, then  it  was  not  erroneous  in  any  view  to  charge. as 
requested,  if  "  vindictive  damages,"  or  damages  "  as  smart 
money,"  could  properly  be  given.  Unless  his  proposition  as 
an  entire  one  was  sound,  it  was  not  error  to  refuse  to  instruct 
the  jury  to  adopt  and  be  governed  by  it.  We  do  not  under- 
stand the  learned  counsel  for  the  defendant  to  deny  that  in 
estimating  damages  in  an  action  of  libel,  the  jury  are  not  only 
to  consider  and  compensate  any  actual  and  pecuniary  loss,  but 
if  the  injury  was  wilful  or  intentional,  they  may  consider  the 
mental  sufferings  of  the  plaintiff,  the  circumstances  of  indignity 
and  contumely  under  which  the  wrong  was  done,  and  the  con- 
sequent public  disgrace  to  the  plaintiff,  together  with  any  other 
circumstances  belonging  to  the  wrongful  act  and  tending  to 
the  plaintiff's  discomfort.  ;.. 

But  he  insists  that  when  the  jury,  in  the  exercise  of  a  sound  dis- 
cretion, have  arrived  at  what,  in  their  judgment,  is  a  proper  com- 
pensation— having  reference  to  all  these  circumstances — their 
duty  and  power  end  ;  and  they  can  add  nothing  to  such  compen- 
sation to  punish  the  defendant  for  the  public  good,  by  deterring 
him  from  doing  similar  wrongs  to  the  same  plaintiff  or  to  others. 

One  consideration  naturally  suggests  itself  upon  the  mere 
statement  of  these  propositions.  A  plaintiff  who  has  been 
injured  by  a  tort  or  wrong  of  a  defendant,  is  entitled  in  all 
cases  to  his  actual  damages.  If  these  include  compensation  for 
mental  suffering,  and  a  consideration  of  the  circumstances  of 
indignity  under  which  the  wrong  was  done,  the  public  disgrace 
inflicted,  and  other  actual  discomfort  produced,  the  plaintiff 
should  be  compensated  at  all  events,  whether  the  wrong  was 


N-EW-YOKK.  299 


Fry  a.  Bennett. 


wanton,  or  was  done  believing  the  charges  published  to  be 
true. 

In  either  case,  the  mental  suffering  must  be  as  great,  the  cir- 
cumstances of  apparent  indignity  are  the  same,  and  his  dis- 
grace will  be  as  absolute  and  mortifying  in  the  one  case  as  the 
other,  until  his  character  has  been  vindicated  by  a  verdict 
establishing  the  falsity  of  the  calumnies  charged  against -him. 
If  such  considerations  are  not  constituent  elements  of  damage, 
and  if  a  person  who  has  been  injured  in  these  respects,  is  not 
to  be  compensated  by  damages,  as  a  matter  of  strict  legal  right, 
and  if  a  defendant  is  to  be  exonerated  from  such  damage, 
when  the  injury  was  not  wanton,  and  is  to  be  subjected  to  them 
when  it  was,  then  such  damages  may  not  inaptly.be  termed 
punitive,  or  vindictive,  or  damages  given  as  smsirt  money. 

If  the  right  to  them  does  not  result  from  the  fact  of  the 
wrong,  and  the  suffering  and  disgrace  caused  by  it,  then  they 
are  not  given  to  compensate  for  such  injuries,  as  a  matter  of 
course,  merely  because  he  wrongfully  caused  them,  but  because 
he  caused  them  from  a  deliberate  purpose  to  inflict  them, 
without  anything  to  palliate  or  mitigate  his  conduct.  Logi- 
cally speaking,  such  damages  when  given,  are  awarded  full  as 
much  to  punish  a  defendant  as  to  compensate  a  plaintiff;  and 
they  are  given  as  much  by  way  of  smart  money,  as  because 
the  plaintiff  is  entitled  to  them  as  an  indemnity,  inasmuch  as 
they  are  given  in  consequence  of  the  wantonness  of  the  wrong, 
and  not  merely  on  account  of  the  sufferings,  discomfort  and 
disgrace  caused  by  them  to  the  plaintiff.  A  reference  to  some 
of  the  cases  will  show  that  the  decisions  in  the  courts  of  this 
State,  on  this  point,  have  been  uniform.  Tillotson  v.  Cheetham, 
3  Johns.  72.,  56,  was  an  action  for  a  libel.  No  plea  was  put 
in,  and  a  writ  of  inquiry  was  executed  before  Ch.  J.  Kent 
and  a  jury.  The  judge  charged  the  jury,  that  the  case 
"  demanded  from  the  jury  exemplary  damages  ;  "  *  *  *  * 
"  that  he  did  not  accede  to  the  doctrine  that  the  jury  ought  not 
to  pupish  the  defendant,  in  a  civil  suit,  for  the  pernicious 
effect  which  a  publication  of  this  kind  was  calculated  to  pro- 
duce in  society."  The  defendant  moved  to  set  aside  the 
inquest,  and  insisted  that  "  the  charge  of  the  judge  was  incor- 
rect in  stating  that  the  plaintiff  was  entitled  to  exemplary 


300  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

damages,  on  account  of  the  injurious  tendency  of  such  publi- 
cations to  the  community.  In  a  private  action,  the  party  can 
recover  only  for  the  private  wrong ;  he  has  no  concern  with 
the  public  offence,  for  which  the  defendant  must  atone  on  the 
indictment." 

The  motion  was  denied.  Kent,  Ch.  J.,  after  citing  cases, 
which,  in  his  view  of  them,  sanctioned  the  doctrine  contained 
in  this  part  of  the  charge,  remarks,  that  "  it  is  too  well  settled 
in  practice,  and  is  too  valuable  in  principle  to  be  called  in 
question."  The  report  of  the  case  states,  that  "  Thompson,  J., 
and  Van  Ness,  J.,  declared  themselves  to  be  of  the  same  opin- 
ion." Spencer,  J.,  said,  that  "  in  vindictive  actions,  such  as 
for  libels,  defamations,  assault  and  battery,  false  imprisonment, 
and  a  variety  «f  others,  it  is  always  given  in  charge  to  the 
jury  that  they  are  to  inflict  damages  for  example's  sake,  and  by 
way  of  punishing  the  defendant." 

This  decision  was  made  in  1808,  and  seems  to  be  a  direct 
adjudication  of  the  question  presented  in  the  request  to  charge. 

In  Hoyt  v.  Gelston,  13  Johns.  ./?.,  141, 151,  which  was  an 
action  of  trespass  for  seizing  a  vessel,  &c.,  the  plaintiff's  coun- 
sel admitted  "  that  the  defendants  had  not  been  influenced  by 
any  malicious  motives  in  .making  the  seizure ;  and  that  they 
had  not  acted  therein  with  any  view  or  design  of  oppressing  or 
injuring  the  plaintiff.  The  presiding  judge  held,  that  such 
admission  precluded  the  plaintiff  from  claiming  any  damages 
against  the  defendants,  by  way  of  punishment  or  smart  money ; 
and  that  after  such  admission,  the  plaintiff  could  recover  only 
the  actual  damages  sustained,  and  he  gave  that  direction  to  the 
jury." 

In  Wory  v.  Jenkins,  14  Johns.  R.,  352,  being  an  action  of 
trespass  for  beating  the  plaintiff's  mare,  by  reason  whereof  she 
died,  the  mare  was  proved  to  be  worth  $50  or  $60.  The  judge 
told  the  jury  the  plaintiff  was  entitled  to  recover  the  value  of 
the  mare  ;  and  "  if  they  believed  as  he  did,  that  the  defendant 
had  whipped  her  to  death,  it  was  a  case  in  which,  from  the  wan- 
tonness and  cruelty  of  the  defendant's  conduct,  the  jury  'had  a 
right  to  give  smart  money."  They  found  a  verdict  for  $75.  A 
motion  was  made  to  set  aside  the  verdict,  for  excessive  damages 
and  misdirection  of  the  judge.  The  court  said,  "We  think 


NEW-YORK.  301 


Fry  a.  Bennett. 


the  charge  of  the  judge  was  correct;  and  we  should  have  been 
better  satisfied  with  the  verdict  if  the  amount  of  damages  had 
been  greater  and  more  exemplary." 

In  Woodward  v.  Paine,  15  Johns.  R.,  494,  the  same  instruc- 
tion was  given  to  the  jury,  and  the  correctness  of  the  decision 
affirmed. 

In  Hoot  v.  Ring,  4  Wend.,  113,  which  was  an  action  for  a 
libel$  the  presiding  judge,  after  giving  his  views  of  the  evils  of 
a  bitter  and  unmitigated  aspersion  of  private  character,  through 
the  medium  of  newspapers,  stated  in  his  charge,  that  "  in  a 
fitting  case  a  jury  could  render  no  more  meritorious  service  to 
the  public  than  in  repressing  this  enormous  evil.  It  can  only 
be  done  by  visiting  with  severe  damages  him  who  wantonly 
and  falsely  assails  the  character  of  another  through  the  public 
papers."  No  exception  was  taken  to  this  part  of  the  charge. 

The  chancellor,  in  his  opinion,  stated  the  rule  to  be,  that 
"  the  jury  may  not  only  give  such  damages  as  they  think 
necessary  to  compensate  the  plaintiff  for  his  actual  injury,  but 
they  may  also  give  damages,  by  way  of  punishment,  to  the 
defendants.  This  is  usually  denominated  exemplary  damages, 
or  smart  money." 

In  Fft*o  v.  Ruscoe,  4  Comst.  162,  which  was  an  action  for 
slander,  the  judge  charged,  that  "  the  failure  to  establish  a 
justification  was,  in  law,  an  aggravation  of  the  slander,  and 
that  the  defendant  was  not  entitled  to  any  benefit  from  the 
evidence  given,  to  make  out  a  justification,  if  the  jury  believed 
that  it  failed  to  make  out  a  full  justification."  An  exception 
was  taken  to  this  charge. 

The  court  of  appeals  held  the  charge  to  be  correct,  and  said 
that  an  attempt  to  justify,  though  honestly  made,  was  an 
aggravation  of  the  original  wrong.  If  the  defendant  makes  a 
mistake,  it  is  at  his  own  peril. 

In  Allen  v.  Addington,  11  Wend.,  380,  an  action  for  falsely 
representing  the  credit  of  one  Baker,  whereby  the  plaintiff  was 
induced  to  sell  him  goods  to  the  value  of  $2,000,  the  judge 
instructed  the  jury  that  "  if  they  should  consider  the  plaintiff 
entitled  to  recover,  he  would  be  entitled  not  only  to  the  amount 
of  the  goods  sold,  with  the  interest  of  tlie  same,  but  also  to 
exemplary  damages."  The  defendant  excepted  to  the  charge, 


302  ABBOTTS'  PRACTICE  REPORTS. 


Fry  a.  Bennett. 


and  the  jury  found  a  verdict  for  the  plaintiff  for  $2,564  84 
damages. 

"When  the  cause  was  before  the  Supreme  Court,  for  a  new 
trial,  that  court  held  that  the  rule  of  damages  stated  to  the 
jury  was  not  objectionable.  A  writ  of  error  was  brought  to 
the  court  for  the  correction  of  errors.  (T  Wend.,  26,  199). 

The  judgment  was  reversed  on  the  sole  ground  that  the 
second  count  was  bad  in  substance ;  but  the  third  count  being 
deemed. sufficient  after  verdict  to  sustain  the  judgment,  the 
record  was  remitted  to  the  Supreme  Court,  with  liberty  to  the 
plaintiff  to  apply  there  to  amend  the  Postea,  so  as  to  apply  the 
verdict  to  the  third  count,  (the  first  count  not  having  been 
proved),  and  to  render  judgment  thereon ;  and  if  such  leave 
was  refused,  to  apply  for  a  new  trial,  and  for  liberty  to  amend 
his  declaration  before  the  awarding  of  a  venire  de  novo.  (11 
Wend.,  421).  Application  was  made  to  the  Supreme  Court  for 
leave  to  amend  the  Postea,  and  enter  judgment  on  the  third 
count,  which  was  granted.  (12  Wend.,  215). 

This  seems  to  be  a  direct  affirmance  of  the  proposition,  that 
in  an  action  of  tort,  although  it  affects  property  only,  and  the 
actual  damages  can  be  ascertained,  exemplary  damages  may 
be  given,  in  a  case  in  which  the  tort  resulted, from  a»purpose 
to  deliberately  and  intentionally  injure  the  plaintiff.  Although 
the  doctrine  that  exemplary  or  vindictive  damages  may  be 
given  in  actions  of  tort,  when  the  wrong  was  wantonly  or 
maliciously  committed,  has  been  uniformly  acted  upon  at  nisi 
prim,  and  sanctioned  both  by  the  Supreme  Court  and  the  court 
of  last  resort  of  this  State,  its  justice  or  any  direct  authority 
for  it,  has  recently  been  denied  in  Dain  v.  Wykoff,  3  Seld.  E., 
193,  by  an  eminent  judge  of  the  Court  of  Appeals. 

"We  have  also  been  favored  with  the  opinion  of  Mr.  Justice 
Jewett,  and  that  of  Mr.  Justice  Mason,  in  the  case  of  Taylor, 
Hale  and  Murdock  v.  Church.  That  was  an  action  for  libel. 
The  judge  charged,  that  "  If  the  jury  were  satisfied  that  the 
defendant  was  influenced  by  actual  malice  or  a  deliberate 
intention  to  injure  the  plaintiffs,  they  might  give  such  further 
damages  (in  addition  to  a  full  compensation  for  the  injury)  as 
are  suited  to  the  aggravated  character  which  the  act  assumes, 
and  as  are  necessary  as  an  example  to  deter  from  the  doing  of 


NEW-YORK.  303 


Fry  a.  Bennett. 


such  injuries."  To  this  there  was  an  exception.  Mr.  Justice 
Jewett  held  this  part  of  the  charge  to  be  correct ;  and  Mr. 
Justice  Mason  held  it  to  be  clearly  wrong.  A  note  of  the 
reporter  states,  that  five  members  of  the  court  did  not  express 
a  concurrence  with  either  judge  on  the  question  now  under 
consideration.  All  the  judges  agreed  with  Mr.  Justice  Jewett 
in  granting  a  new  trial,  on  another  ground,  stated  in  his  opin- 
ion. How  many  of  the  judges  were  present  on  the  argument 
of  that  case,  or  took  part  in  the  decision  of  it,  the  reporter's 
note  does  not  state. 

If  the  Court'  of  Appeals  has  not  directly  affirmed  the  con- 
trary of  the  instruction  sought  on  the  trial  of  this  action,  neither 
has  it  affirmed  that  such  an  instruction  would  be  proper.  To 
instruct  a  jury,  as  the  judge  before  whom  this  action  was  tried 
was  requested  to  charge  the  jury  in  this  case,  would  be  directly 
in  conflict  with  the  law,  as  it  has  been  uniformly  stated  to 
juries,  in  such  actions  in  this  State,  from  the  earliest  period  of 
its  judicial  history,  so  far  as  the  practice  is  evidenced  by 
reported  decisions. 

Under  such  circumstances,  we  do  not  feel  at  liberty  to  dis- 
regard a  rule  so  long  and  uniformly  held,  and  directly  affirmed 
by  the  Supreme  Court  of  this  State,  half  a  century  ago,  and 
if  not  expressly  decided,  at  least  clearly  approved  by  the 
court  for  the  correction  of  errors,  in  Allen  v.  Addiqgton,  and 
in  Eoot  v.  King.  (See  Day  v.  Woodworth,  13  How.  U.  8.  R., 
371,  372  ;  Austin  v.  Wilson,  4  Gush.  R.,  273,  and  the  cases 
cited  by  counsel  in  Randall  v.  Stone,  1  Selden,  18). 

If  in  actions  of  libel  and  slander,  and  in  other  actions  of 
tort  for  injuries  to  the  person,  or  to  character,  damages  may 
be  given  when  the  act  was  wanton  or  actually  malicious,  which 
would  not  otherwise  be  allowed,  although  in  each  case  the 
actual  pecuniary  injury,  the  extent  of  personal  suffering,  the 
attendant  circumstances  of  contumely  and  indignity,  and  the 
public  disgrace,  be  precisely  the  same  in  the  one  case  as  in  the 
other,  it  is  of  no  practical  consequence  whether  such  damages 
be  termed  punitive,  vindictive  or  compensatory.  By  whatever 
name  they  may  be  designated,  they  are  manifestly  given  on 
account  of  the  wantonness  or  malice  of  the  defendant's  con- 
duct, and  the  very  rule  which  determines  whether  they  may 


304:  ABBOTTS'  PRACTICE  REPORTS. 


Fry  a.  Bennett. 


be  given  or  must  be  withheld,  has  no  real  principle  on  which 
it  can  stand,  if  it  be  conceded  that  they  cannot  be  given  by 
way  of  example,  or  to  punish  atrocity  of  conduct. 

While  such  damages  are  allowed  to  be  recovered,  it  cannot 
be  an  indifferent  consideration  whether  a  defendant  is  rich  or 
poor.  Damages  which  would  be  exemplary,  when  inflicted 
upon  a  person  in  moderate  circumstances,  would  be  trivial, 
and  in  no  practical  sense  exemplary,  when  imposed  upon  a 
person  whose  property  and  income  were  very  much  larger. 

Who  the  parties  to  a  controversy  of  such  a  character  as  this, 
are,  what  are  their  pursuits  and  positions,  and  what  the  influ- 
ence resulting  from  them  by  a  libel  published  by  either  of  the 
other  may  be,  are  not  unimportant  parts  of  the  transaction 
itself.  Such  considerations  sometimes  give  to  a  libel  and  slan- 
der all  that  it  has  of  a  substantial  interest  or  importance  ;  and 
sometimes  they  are  of  such  a  character,  that  however  gross 
the  terms  of  the  libel,  they  alike  fail  to  give  respectability  to 
the  action,  or  excite  interest  as  to  the  defence. 

In  considering  the  question  raised  by  the  exception  to  the 
refusal  to  charge  as  requested,  we  have  not  referred  to  the 
decisions  of  the  courts  of  any  other  State.  We  have  forborne 
to  make  such  a  reference,  for  the  reason  that  the  decisions  of 
the  courts  of  this  State  have  been  uniform,  and  reach  back  to 
a  period  so  remote,  that  we  do  not  feel  at  liberty  to  treat  the 
question  as  an  open  one  in  this  State,  notwithstanding  the 
doubts  recently  expressed  by  some  members  of  our  Court  of 
Appeals  in  relation  both  to  the  justice  of  the  rule,  and  the 
existence  of  any  authority  by  which  it  can  be  upheld. 

A  new  trial  is  granted,  on  the  ground  that  the  deposition  of 
Strakosch  was  improperly  admitted.  A  new  trial  being  granted 
on  that  ground,  it  must  be  with  costs,  to  abide  the  event  of 
the  action. 

HOFFMAN,  J. — As  I  concur  with  my  brethren  in  their  con- 
clusions upon  every  point  of  the  cause,  and  consider  the  rea- 
sons assigned  by  Mr.  Justice  BOSWORTH  as  sufficient  to  sustain 
such  conclusions,  it  might  appear  needless  to  add  anything  to 
the  opinion  delivered.  But  the  leading  question  in  this  case — 
the  right  to  give  vindictive  damages  in  a  libel  suit  where  actual 


NEW-YORK.  305 


Fry  a.  Bennett. 


malice  is  found  by  the  jury — receives  great  importance  from 
the  opinions  of  some  judges  of  the  Court  of  Appeals,  which 
question  that  right.  The  doubt  thus  thrown  upon  a  rule  which 
I  have  received  from  my  professional  teachers  as  unquestioned, 
irreversible  law,  has  made  me  feel  it  a  duty  to  add  something 
to  the  reasoning  and  authorities  upon  which  the  opinion  of  my 
brother  is  founded.  The  twenty-ninth  exception  taken  by  the 
defendant's  counsel  upon  the  trial,  involves  the  point  in  contro- 
versy. 

The  judge  was  requested  to  charge  as  follows  : — "That  if 
the  jury  should  find  any  ground  for  giving  damages  to  the 
plaintiff,  their  verdict  should  be  for  such  sum  only  as  would 
compensate  him  for  the  injury  he  had  sustained  therefrom ; 
and  that  the  jury  were  not  at  liberty  to  give  him  any  further 
sum  by  way  of  punishment  of  the  defendant,  or  by  way  of 
vindictive  damages,  or  as  smart  money." 

The  observations  of  my  brother  Bosworth,  in  contrasting 
this  request  with  the  charge  actually  made,  and  his  conclusion 
that  the  refusal  is  not,  when  the  whole  is  considered,  ground 
of  exception,  appear  to  me  unanswerable.  But  I  am  desirous 
of  expressing  my  own  opinion  upon  this  great  point,  when 
placed  in  the  strongest  form  in  which  it  can  be  presented  for 
the  defendant.  I  shall,  therefore,  consider  it  as  if  the  judge 
had  expressly  charged  the  converse  of  the  proposition  to  be 
the  law,  and  had  employed  the  language  of  the  request,  vary- 
ing it  only  by  omitting  the  word  "  not  "  in  the  latter  part,  and 
inserting  the  same  word  after  the  word  "  should  "  in  the  first 
clause.  In  determining  whether  this  would  be  ground  of  ex- 
ception, the  court  is  justified  in  connecting  it  with  portions  of 
the  charge  actually  made,  pertinent  to  the  same  question.  It 
may,  therefore,  be  viewed  in  conjunction  with  the  instruction, 
"  that  an  actual  malicious  intent  in  making  the  publication 
might  be  proven,  and  the  jury  was  to  judge  by  the  evidence 
whether  such  an  intent  was  made  out.  If  such  was  the  case, 
and  the  defendant  had  not  proven  his  allegations  to  be  true,  he 
should  not  escape  with  nominal  damages." 

I  shall  treat  the  question,  then,  as  the  counsel  insists  it  must 
be  treated,  under  the  refusal  and  the  actual  charge  ;  and  shall 
suppose  that  the  judge  had  added,  after  what  I  have  quoted 

20 


306  •  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

from  the  charge,  the  converse  of  the  proposition  contained  in 
the  request,  as  I  have  stated  it. 

It  is  to  be  noticed  that  this  proposition  does  not  involve,  but 
may  be  entirely  consistent  with,  the  exclusion  of  the  idea  of 
punishment  for  the  injury  done  to  society.  It  is  punishment 
of  the  defendant  for  the  wrong  done  to  the  plaintiff.  It  is 
punishment  for  an  injury  attempted  or  designed  as  well  as  for 
one  inflicted.  It  is  punishment  for  the  intent  to  injure  in  nu- 
merous cases,  where  no  injury  can  probably  arise  ;  and  it  is 
consistent  with  the  assumption  that  the  offence  cannot  be 
penally  visited  by  the  State;  or  if  it  can  be,  that  the  penalty 
is  inflicted  on  a  different  ground. 

I  am  unable  to  see  any  logical  contradiction  in  holding,  that 
the  same  person  may  be  compelled  to  atone  for  the  same 
offence  to  an  individual  for  a  wrong  done  or  menaced  him, 
and  to  society  for  his  aggression  upon  her  peace ;  nor  again, 
'that  the  mode  of  making  such  atonement  should  be  payment 
of  money  in  each  case.  If  this  is  so,  then  the  adjustment  of 
the  proportion  of  punishment  becomes  a  matter  of  practical 
arrangement ;  and  it  will  be  seen  that  tribunals  of  justice  have 
so  adjusted  it. 

In  this  connection  I  may  advert  to  the  point  taken  by  the 
counsel,  that  this  doctrine  of  punishment  invades  the  provision 
of  the  present  constitution,  that  no  person  shall  be  subject  to 
be  twice  put  in  jeopardy  for  the  same  offence.  That  precept 
is  found  in  the  early  ages  of  the  common  law  in  the  maxim, 
nemo  debet  Us  puniri  pro  uno  delicto,  and  was  applicable  to 
criminal  prosecutions,  and  when  one  judgment  or  senterrce*had 
been  perfected.  Another  maxim,  perhaps  more  pertinent,  is, 
that  no  one  should  be  twice  vexed,  if  it  appears  to  the  court, 
that  it  is  for  one  and  the  same  cause.  (Shawe's  Case,  5 
Rep.,  61). 

It  has  never  been  imagined  that  either  of  these  precepts 
interposed  an  objection  to  the  institution  of  proceedings  by  the 
State  simultaneously  \vith  an  action  by  an  individual  for  a 
libel.  It  has  become  settled  law  in  England  and  in  this  State, 
that  the  existence  or  determination  of  the  one  is  no  bar  to  the 
other,  although  it  may  bear  upon  the  question  of  the  suspen- 
sion of  proceedings,  and  mitigation  of  punishment,  in  the 


NEW- YORK.  307 


Fry  a.  Bennett. 


criminal  court.  That  court  will  postpone  sentence  or  the  pro- 
ceedings, until  the  result  of  the  civil  suit  is  known,  with  a 
view  to  the  extent  of  punishment ;  but  the  civil  action  is  not 
stayed  or  affected  by  the  criminal  prosecution.  (Cook  v.  Ellis, 
6  Hill,  466,  and  cases).  I  am  informed  by  two  gentlemen, 
who  have  each  filled  the  office  of  district  attorney,  that  the 
practice  is  as  frequent  to  stay  proceedings  before  as  after  con- 
viction, until  the  result  of  the  civil  suit  is  ascertained. 

The  punishment  upon  conviction  for  a  libel  in  our  State,  is  a 
fine  not  exceeding  $250,  or  imprisonment  not  exceeding  one 
year,  or  both  such  fine  and  imprisonment.  (2  It.  S.,  697). 
This  is  the  reparation  to  the  public,  which  the  legislature  has 
deemed  sufficient  for  the  vindication  of  public  justice.  And 
that  offence  which  is  thus  punished,  is  the  tendency  of  the  libel 
to  provoke  to  a  breach  of  the  peace.  (1  Haw.  PI.  C.,  73  ;  2 
Kent,  17). 

This  tendency  is  so  essentially  the  ground  of  the  criminal 
prosecution,  that  it  lay  at  the  root  of  the  rule  so  long  prevalent 
in  our  own  country,  that  the  truth  upon  an  indictment  for  a 
libel  could  not  be  given  in  evidence.  (The  People  v.  Cros- 
well,  2  John.  Cos.,  392 ;  2  Kent,  18).  Whether  true  or  false, 
the  danger  to  the  peace  of  the  country  was  the  same. 

When,  then,  the  terms  vindictive  damages,  or  exemplary 
damages,  are  employed  in  a  civil  action  for  libel,  they  mean, 
in  my  opinion,  the  atonement  which  the  law  demands  shall  be 
made  to  the  libeled  party  by  the  offender,  and  such  atonement 
involves  essentially  his  punishment.  It  is  a  condemnation  and 
infliction  for  traducing  the  individual — not  for  provoking  him 
to  break  the  peace. 

It  would  be  objectionable  in  this  view  of  the  case,  to  instruct 
a  jury  to  give  damages  on  the  ground  that  the  interests  of 
society  required  the  defendant's  punishment,  or  that  they  could 
consider  the  offence  to  the  State  as  a  reason  for  increasing  the 
damages.  It  must  be  admitted  that  this  idea  has,  in  some 
cases,  been  loosely  and  partially  presented.  It  does  not  belong 
to  that  idea  of  the  punishment  now  sought  to  be  developed. 
That  is  consistent  with  the  supposition,  either  that  there  is  no 
penalty  on  behalf  of  the  State,  or  that  such  penalty  is  for 
another  cause,  and  with  a  different  object. 


308  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

The  moment  we  admit  of  any  exception  to  the  naked  rule  of 
compensation,  measured  by  an  accurate  or  approximate  com- 
putation of  actual  pecuniary  loss,  we  admit  the  idea  of  a 
reparation  for  something  indefinite,  and  the  adjustment  of 
which  must  be  indefinite. 

It  is  stated  that  the  Lord  Commissioner  (Adam)  of  Scot- 
land— the  most  earnest  advocate  of  the  most  restricted  rule — 
said,  in  an  action  for  defamation  of  a  professional  man,  "  that 
the  question  of  damages  must  always  include  both  a  question 
of  loss  and  solatium"  (Quoted  by  Mr.  Sedgwick,  465,  JW.}. 
The  allowance  of  any  sum  for  solatium,  is  an  allowance  for 
something  beyond  positive  loss,  and  for  reparation  distinct 
from  restoration.  It  seems  .difficult  to  separate  this  idea  of 
reparation  from  that  of  punishment.  What  is  taken  from  the 
offender  beyond  what  is  lost  and  can  be  restored  to  the  party 
injured,  partakes  of  the  ryiture  of  a  penalty. 

But  again,  there  is  a  class  of  libel  cases  in  which  the  cha- 
racter and  situation  of  the  person  assailed,  preclude  the  possi- 
bility, not  merely  of  a  pecuniary  loss,  but  of  an  injury  to  his 
reputation,  or  even  a  wound  to  feeling.  Lord  Tenterden 
adverts  to  such  instances  wrhen  he  speaks  of  the  calumnies  of 
those  whose  censure  is  more  to  be  desired  than  their  praise ; 
and  Cicero  had  before  declared  :  Invidiam  virtute  paratam, 
gloriam,  non  invidiam,  putarem.  (In  Cat.} 

When  the  justice  of  the  country  is  invoked  to  deal  with  a 
libeler  in  such  a  case,  on  what  ground  can  any  damage  be 
awarded  but  upon  that  of  atonement  for  an  attempted  offence, 
and  punishment,  as  the  absolute  foundation  and  object  of  the 
verdict  ?  Civil  actions  for  libels  must  be  abandoned,  and  in 
cases  where  the  just  indignation  of  an  honest  community 
demands  their  enforcement,  if  such  a  principle  must  be  sur- 
rendered. 

With  these  views,  I  have  examined  the  leading  English 
cases,  and  those  of  our  sister  States,  which  are  cited  by  Mr. 
Sedgwick  in  his  able  work  upon  damages,  and  in  the  com- 
ments of  Mr.  Greenleaf  and  Mr.  Metcalf  upon  them.  A  few 
others  may  be  added.  (Cole  v.  Tucker,  6  Texas  Rep.,  268 ; 
Fleet  v.  Hollerheep,  13  B,  Monroe,  225  ;  Stout  v.  Prad,  Coxe's 
JV.  J.  Rep.,  79  ;  Trabrue  v.  Mays,  3  Dana,  138).  It  appears 


NEW-YOKK.  309 


Fry  a.  Bennett. 


to  me,  that  the  great  body  of  these  authorities  sanction  the  rule 
as  I  have  attempted  to  express  it. 

It  is  superfluous  for  me  to  notice  the  decisions  in  our  own 
State,  after  the  critical  and  ample  examination  of  them  by  my 
associate.  I  content  myself  with  adverting  to  that  of  Tillotson 
•y.  Cheetham,  in  1808,  (3  Johns.  JR.  56),  and  to  those  of  Collins 
v.  The  Albany  R.  K.  Company,  in  1852,  (12  Barbow,  495),  and 
Taylor -y.  Church,  in  1853.  (Selden's  Notes  of  Appeal  Cases, 
July  1853,  50). 

In  1808,  Chief  Justice  Spencer  stated,  "  that  it  had  always 
been  the  practice  to  instruct  the  jury  in  vindictive  actions, 
such  as  libels,  that  they  are  to  inflict  damages  for  example's 
sake,  and  by  way  of  punishment  to  the  defendant."  The  rule 
thus  declared  to  have  always  prevailed  before  1808,  has  pre- 
vailed ever  since,  and  has  been  recognized,  or  assumed  to 
exist,  in  a  long  series  of  decisions  in  our  State.  It  has  become 
consecrated  as  an  enduring  maxim  of  our  laws,  by  a  perpetual 
tribute  to  its  legal  truth,  offered  by  the  illustrious  judges  of  our 
tribunals,  from  the  day  of  Spencer  and  of  Kent  to  the  charge 
of  the  chief  justice  of  this  court  in  the  present  cause.  For 
myself,  I  feel  that  in  wandering  from  it,  I  should  merit  the 
admonition  involved  in  the  maxim  of  Lord  Coke  :  Quodnovum 
judicium  non  d at  jus  novum,  seddeclarat  antiquwn. 

For  these  reasons  I  consider  the  refusal  of  the  judge  to 
charge  the  jury  as  he  was  requested  in  the  29th  exception,  to 
be  unobjectionable,  and  his  actual  charge  correct. 

A  new  trial  must,  however,  be  granted,  on  account  of  the 
admission  of  the  deposition  of  Strakosch. 

II.  March. — Order  to  show  cause  why  plaintiff  should  not  be 
at  liberty  to  introduce  proof  that  Strakosch  was  in  fact  absent 
from  the  city  at  the  time  of  the  trial. 

The  plaintiff  moved  upon  affidavits  showing  that  at  the  time 
of  the  trial  Strakosch  was  actually  absent  from  the  State, — he 
having  left,  the  day  after  his  deposition  was  taken, — that  he 
might  be  allowed  to  prove  the  fact  of  the  witness'  absence 
either  at  the  bar  of  the  court  or  before  a  referee  to  be 
appointed ;  and  that  on  that  fact  being  satisfactorily  proved, 


310  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

the  order  granting  a  new  trial,  might  be  vacated,  a  re-argument 
ordered,  and  that  the  case  or  bill  of  exceptions  might  be  so 
amended  as  to  make  it  appear  thereby  that  the  absence  of 
Strakosch  was  satisfactorily  proved. 

A.  L.  Jordan  and  F.  A.  /Sherman,  for  the  motion.  The 
proof  of  the  absence  of  Strakosch  from  the  State,  is  now,  and 
was  at  the  trial,  addressed  solely  to  the  court  and  not  to  the 
jury,  and  therefore  could  not  affect  the  verdict.  The  proof 
showing  both  now  and  at  the  trial,  that  Strakosch  was  out  of 
the  State,  and  the  proof  at  the  trial  slight  as  it  was,  being  satis- 
factory to  the  judge  before  the  deposition  was  read  to  the  jury r 
if  it  is  now  satisfactory  to  the  court,  the  order  granting  a  new 
trial  should  be  vacated.  (Roche  v.  Wood,  7  How.  Pr.  jR.,  416, 
Morgan  v.  Avery,  7  Barb.,  656).  And  the  court  may  after 
granting  a  new  trial,  even  on  an  exparte  application,  order  a 
re-argument  and  allow  amendments  in  substance,  and  then 
reverse  their  own  judgment.  (Slocum  v.  Fairchild,  1  Hill,  294). 
Under  the  Code  a  new  trial  ought  not  to  be  granted,  on  the 
ground  that  the  absence  of  Strakosch  was  not  satisfactorily 
proved  at  the  trial,  if  it  is  satisfactorily  proved  now.  (§  176, 
467,  173,  174  and  271,  subd.  2). 

D.  D.  Field,  J.  Townsend  and  B.  GalbraitJi,  opposed. 

First. — The  motion  is  entirely  unprecedented. 

Second. — It  supposes,  first,  that  if  it  had  been  made  at  the 
argument  on  the  appeal,  it  would  at  the  last  term  have  been 
successful ;  and  second,  that  though  not  made  then,  the  court 
will  hear  it  now. 

Third. — The  court  will  not  re-open  the  case  for  the  purpose 
of  letting  in  this  motion  : — 

1.  Is  it  clear  that  the  court  has  the  power  to  order  a  re  hear- 
ing of  the  appeal  ?     For  this  is  in  effect  an  attempt  to  obtain  a 
re-hearing.     The  Code  declares  (§38),  when  an  appeal  shall  be 
re-heard.     Does  not  that  by  implication  exclude  a  re-hearing 
for  any  other  cause  ? 

2.  But  supposing  it  to  have  the  power,  yet  the  restraints  it 
imposes  on  itself  will  not  allow  it  to  re-hear  this  case.     Its  own 
dignity,  and  the  respect  which  it  requires,  and  the  orderly  con- 


NEW-YOKE.  '  311 


Fry  a.  Bennett. 


duct  of  its  proceedings,  forbid  it.  The  parties  have  had  their 
day  in  court.  If  re-hearings  are  allowed  in  one  case,  they  will 
be  asked  in  all.  The  constitution  of  the  court  makes  it  partic- 
ularly inconvenient,  only  three  judges  generally  sitting  at  the 
general  term,  (4  McLean,  254  ;  4  Wend.,  188  ;  25.  Wend.,  253) ; 
and  if  re-hearings  are  allowed,  they  will  always  be  attempted 
when  the  six  judges  are  on  the  bench. 

3.  The  courts  have  always  leaned  against  re-hearings.    There 
is  a  sort  of  tradition  on  the  bench  that  they  are  injurious,  and 
to  be  discouraged. 

4.  There  were  other  points  in  the  case  argued  at  the  general 
term,  on  which  no  opinion  was  expressed. 

5.  The  plaintiff  has  acquiesced  in  the  decision,  and  under  it 
noticed  the  case  for  trial  at  the  present  term.     It  is  submitted, 
therefore,  that  the  court  will  not  grant  this  application,  for 
these  reasons,  if  there  were  no  others,  that  the  case  has  been 
once  fully  heard,  carefully  considered,  the  order  for  a  new 
trial  entered,  and  the  cause  noticed  for  trial. 

Fourth. — If,  however,  the  decision  of  the  general  term  were 
to  be  re-opened,  the  application  to  examine  witnesses,  to  supply 
the  defect  of  proof  at  the  trial,  should  not  be  granted : — 

1.  The  jurisdiction  of  the  general  term  is  purely  appellate, 
and  that  implies  that  it  shall  decide  the  case  upon  the  same 
grounds  as  the  special  term.     (Code,  §37.) 

2.  The  deposition  of  a  witness  taken  conditionally  can  only 
be  read  "  after  it  has  been  proved  that  he  is  absent."     The 
proof  of  absence  cannot  be  made  or  supplied  after  the  deposi- 
tion is  given  in  evidence.     (2  R.  S.,  392,  §  T). 

3.  The  cause  was  heard  at  the  last  term  upon  exceptions,  as 
well  as  upon  a  case.     An  exception  cannot  be   obviated  by 
proof  at  the  argument  of  the  appeal. 

4.  The  instances  in  which  proof  has  been  heretofore  permit- 
ted to  supply  omission  at  the  trial  are  those  in  which  the  proof 
was  documentary  and  could  not  be  contradicted,  and  the  motion 
was  addressed  to  the  discretion  of  the  Court.     (3  Johns.  Gas., 
125  ;  13  Wend.,  525  ;  2  Sandf.,  S.  C.,  T19). 

Fifth. — The  Code  gives  no  countenance  whatever  to  this 
motion  ;  it  is  not  a  case  of  "  amendment."  If  it  were  other- 
wise one  might  always  supply  defective  proof  on  an  appeal ; 


312  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

and  proof  might  as  well  be  introduced  on  one  side  as  the  other, 
to  reject  a  deposition,  as  to  admit  it.  The  word  "  proceeding," 
in  the  view  of  the  Court  of  Appeals,  does  not  include  an  affi- 
davit. (1  Comst.,  611).  "  To  supply  an  omission  in  any  pro- 
ceeding," in  section  174,  refers  to  an  omission  in  a  record  or 
paper — otherwise  one  might  supply  an  omission  to  appeal  or  to 
give  evidence.  (Sec.  §  §  174,  327 ;  7  P.  7?.,  108,  8  P.  P., 
301). 

Sixth. — If,  however,  the  case  were  one  in  which  all  the 
obstacles  before  mentioned  were  removed,  and  the  court  would 
re-open  the  case  and  the  omission  might  be  supplied  by  proofs 
at  the  bar,  yet  it  would  be  a  matter  resting  in  the  discretion  of 
the  court,  and  governed  by  considerations  affecting  the  further- 
ance of  justice.  In  this  case  justice  would  not  be  promoted 
by  the  admission. 

OAKLEY,  C.  J.,  (orally).  On  last  Saturday  a  motion  was 
made  and  argued  in  the  case  of  Fry  against  Bennett.  Fry,  as 
is  well  known,  sued  Bennett  for  a  series  of  libels  on  his  charac- 
ter and  conduct  as  the  manager  of  an  opera.  Trial  was  had 
of  that  suit,  and  it  resulted  in  a  verdict  against  defendant.  In 
the  course  of  that  trial,  the  deposition  of  one  Strakosch  was 
offered  in  evidence.  He  had  been  examined  by  virtue  of  an 
order  made  for  that  purpose.  His  deposition  was  offered  to  be 
read,  and  it  was  received,  under  the  general  objection  on  the 
part  of  defendant's  counsel  that  the  absence  of  the  party  was 
not  satisfactorily  proved.  On  the  argument  of  the  case  an 
exception  wras  taken  to  the  ruling  of  the  judge  at  the  trial 
admitting  that  deposition,  and  a  bill  of  exceptions  on  all  the 
evidence  in  the  matter  was  brought  before  the  court  and 
argued.  The  court  ordered  a  new  trial  solely  on  the  ground 
of  the  improper  admission  of  that  deposition.  Various  other 
questions  of  importance  and  magnitude  were  involved  in  the 
case,  in  respect  to  some  of  wThich  the  judges  who  decided  the 
case  expressed  an  opinion  ;  but,  as  I  understand  it,  the  reversal 
of  the  judgment  and  the  ordering  of  a  new  trial  rested  on  no" 
other  ground  than  that  just  referred  to.  After  this  argument, 
and  after  the  decision  of  the  case,  an  order  for  a  new  trial  was 
entered.  The  plaintiff  now  proposes  to  produce  testimony  at 


NEW-YORK.  313 


Fry  a.    Bennett. 


the  bar  of  the  court,  in  order  to  remedy  the  defect  in  the  evi- 
dence which  existed  at  the  trial,  in  relation  to  the  absence  of 
Mr.  Strakosch.  He  proposes  to  produce  witnesses  and  have 
them  examined,  and  he  has  presented  the  affidavits  of  these 
witnesses,  going  to  establish  very  clearly  that  this  man  was,  in 
fact,  absent  at  the  time  of  the  trial ;  and  which  evidence,  if  it 
had  been  produced  on  the  trial,  would  appear  sufficient  to  have 
authorized  the  introduction  of  the  deposition. 

In  the  discussion  which  took  place  last  Saturday  on  this 
matter,  counsel  for  plaintiif  was  admitted — perhaps  a  little 
irregularly — to  enter  into  an  argument  as  to  the  correctness  of 
the  decision  of  the  court  in  admitting  this  deposition.  The 
court  heard  him,  as  much  perhaps  out  of  deference  to  counsel 
as  from  any  other  reason.  He  also  entered  into  a  similar  dis- 
cussion, intending  to  show  that  the  judges  who  heard  the  case 
on  the  bill  of  exceptions  had  come  to  a  resolution  which  was 
contrary  to  law.  In  disposing  of  this  matter  now,  I  take  occa- 
sion to  say  that  the  judges  who  made  that  decision,  and  ordered 
a  new  trial,  and  to  whom  these  suggestions  were  made,  see  no 
reason  to  alter  the  views  which  they  then  entertained  in  rela- 
tion to  this  matter.  The  question  which  counsel,  in  his  argu- 
ment, presented,  did  not  naturally  or  positively  connect  itself 
with  the  motion  before  the  court.  Still,  however,  as  the  coun- 
sel entered  into  an  argument  on  the  subject,  it  is  proper  to  say 
here,  that  the  judges  who  so  decided  have  not  in  those  sugges- 
tions discovered  any  reason  to  doubt  the  correctness  of  the 
conclusion  at  which  they  arrived  in  that  case. 

]STow,  in  respect  to  the  points  on  which  this  motion  turns,  we 
have  examined  the  matter,  and  we  cannot  see  any  just  ground 
on  which  we  can  grant  this  motion.  It  has,  no  doubt,  often 
happened — I  know  it  myself  in  my  own  experience,  and  I 
know  it  as  a  matter  of  common  expediency — that  when,  on  the 
trial  of  the  case,  there  has  been  some  omission  of  evidence, 
which  afterwards,  on  an  examination  of  the  case  at  bar,  is  dis- 
covered to  be  material,  it  is  within  the  discretion  of  the  court 
to  permit  such  evidence  to  be  supplied.  It  is  done,  for  instance, 
in  the  case  of  a  judgment  record,  or  of  a  deed,  or  of  any  docu- 
ments as  to  which  there  can  be  no  dispute,  and  which  can  lead 
to  no  conflict  of  testimony.  Courts  have  occasionally,  when 


\ 
314  ABBOTTS'  PKACTICE  KEPOKTS. 

Fry  a.  Bennett. 

such  matters  have  come  before  them,  sent  a  case  back  for  a 
new  trial ;  but  that  is  seldom  done  when  the  purpose  is  merely 
to  introduce  a  document  which  could,  in  no  possible  way,  have 
influence  upon  the  minds  of  the  jury.  The  attempt  now  is  to 
carry  this  practice  further.  It  is  attempted  to  have  an  appli- 
cation of  this  kind  made  to  the  court  after  judgment  in  the 
case.  After  the  case  is  decided,  and  a  new  trial  ordered,  it  is 
attempted  to  introduce  evidence  on  a  point  which  might 
be  the  subject  of  conflicting  testimony.  Thus,  witnesses  whom 
the  plaintiff's  counsel  proposes  to  produce  before  the  court  and 
examine,  might,  for  all  we  know,  be  contradicted,  and  success- 
fully contradicted,  by  others.  At  all  events,  the  admission  of 
such  evidence  would  open  the  door  for  a  trial  on  matters  of 
fact  which  were  not  sufficiently  proved  at  the  trial ;  and  this- 
would  be  clearly  inconvenient,  and  not  only  that,  but  highly 
improper.  We  are  quite  of  opinion,  therefore,  that  we  cannot 
extend  the  practice  on  this  subject  beyond  the  cases  in  which 
it  has  been  hitherto  adopted  ;  that  is,  beyond  cases  in  which, 
when  a  bill  of  exceptions  is  brought  before  the  court,  applica- 
tion is  made  to  supply  a  defect  in  the  evidence — formal  merely 
— and  which  evidence,  when  produced,  verifies  itself,  and  is 
necessary,  as  a  matter  of  record,  to  sustain  the  party  who 
obtained  the  verdict.  This  is  allowed  to  be  done  when  it  is 
unnecessary  and  inexpedient  to  put  the  parties  to  the  expense  of 
a  new  trial,  and  where  the  proposed  supplementary  evidence 
is  merely  a  paper  which  cannot  be  disputed.  In  this  practice 
there  is  nothing  unsafe  or  inconvenient ;  but  it  is  easy  to  see 
that  if  we  were  to  go  further,  and  undertake  to  enter  into 
inquiries  in  relation  to  evidence  which  in  its  very  nature  is 
controvertible,  where  opposite  witnesses  might  be  called,  and 
where  it  would  be  for  the  court  to  weigh  the  credit  of  the  wit- 
nesses, such  a  practice  would  lead  to  great  irregularity.  On 
that  ground,  therefore,  it  is  quite  clear  that  this  motion  cannot 
be  granted.  It  is  quite  clear,  also,  that  such  a  motion  never 
has  been  granted  after  judgment  being  given.  The  application 
is,  in  fact,  to  open  a  judgment  which  has  been  entered,  to  set 
aside  the  order  for  a  new  trial,  to  allow  additional  facts  to  be 
proved,  and  to  bring  the  matter  up  de  novo.  In  the  judgment 
of  the  court,  that  would  be  the  effect  of  granting  this  motion. 


NEW-YORK.  315 


Fry  a.  Bennett. 


Now,  it  is  much  better  that  the  parties  be  put  to  the  inconve- 
nience of  a  new  trial,  in  which  this  defective  proof  in  regard 
to  Strakosch's  deposition  may  be  remedied.  On  the  whole,, 
therefore,  the  motion  must  be  denied.  The  reasons  for  this 
decision  are  given  more  extensively  in  detail  in  the  written 
opinion,  which  can  be  resorted  to  by  parties  interested  in  it. 

BY  THE  COURT,  BOSWORTH,  J.— We  have  no  doubt  that  the 
deposition  of  Strakosch  was  improperly  admitted  as  evidence, 
and  that  a  new  trial  should  have  been  granted  for  that  cause. 
It  is  now  contended  by  the  plaintiff,  that,  conceding  this  to  be 
so,  yet  as  the  evidence  on  which  its  admissibility  depends  is, 
by  statute,  to  be  addressed  to  the  court  only,  and  is  not  to  be,, 
and  is  not  considered  by  the  jury  in  forming  their  verdict,  and 
as  it  is  now  made  apparent,  by  satisfactory  proof,  or  can  be 
made  so,  that  Strakosch  was  continuously  absent  from  the 
State  until  after  the  trial,  the  court  should  now  allow  the  fact 
to  be  proved  ;  and  that  if  conclusive  proof  is  given,  the  order 
granting  a  new  trial  shouM  be  vacated,  and  a  re-argument 
ordered,  and  the  case  be  so  amended  as  to  present  on  its  face 
satisfactory  proof  of  the  fact  of  such  absence. 

The  plaintiff  relies  mainly  on  that  class  of  cases  in  which  a 
party  who  has  obtained  a  verdict  on  defective  or  insufficient 
proof  of  some  fact,  the  existence  of  which  depended  on  record 
or  documentary  evidence,  has  been  allowed  to  supply  the  de- 
fect, on  the  argument  of  a  motion  for  a  new  trial,  by  produ- 
cing a  properly  exemplified  copy  of  the  record  or  document. 
He  cited  2  Sand.,  8.  C.  R.,  719  ;'  3  £arb.t  429  ;  24  Wend. ;  14 
Wend.,  126;  4  Wend.,  591 ;  13  J.  E.,  517;  3  J.  C.,  125  ;  2 
Metcalf,  64. 

All  of  those  cases,  except  two,  (3  Barb.,  420,  and  24 
Wend.,  14),  came  before  the  Court  on  a  case  made,  and  not  on 
a  bill  of  exceptions,  or  upon  a  writ  of  error.  In  all  of  them 
the  defect  was  supplied  on  the  argument,  and  before  a  decision 
was  made  by  the  Court  in  lane.  And  in  all  of  them  the  point 
defectively  proved  at  the  trial  was  capable  of  being  proved  by 
record  evidence,  which  could  not  have  been  controverted  had 
it  been  produced  at  the  proper  time,  and  evidence  of  the  latter 
kind  was  produced  and  received  on  the  argument  in  opposition 


316  ABBOTTS'  PRACTICE  REPORTS. 

Fry  a.  Bennett. 

to  the  motion  for  a  new  trial.  It  has  been  expressly  decided 
that  that  rule  does  not  apply  to  a  bill  of  exceptions.  In  Hart 
v.  Coltrain,  (24  Wend.  14),  the  Court  stated  the  rule  in  these 
terms : — 

"  A  motion  for  a  new  trial,  on  a  case  made,  is  addressed  to 
the  sound  discretion  of  the  Court ;  and  where  the  party  relies 
on  some  defect  in  the  proofs,  which  is  afterwards  supplied  by 
evidence  which  could  not  have  been  controverted  had  it  been 
produced  at  the  proper  time,  and  the  Court  see  that  a  new 
trial  could  be  of  no  use,  the  motion  would  be  denied. — (Burt  v. 
Place,  4,  Wend.  597,  and  cases  cited).  But  this  rule  does  not 
apply  to  a  bill  of  exceptions,  and  we  cannot  look  into  the 
affidavit." 

In  that  case  an  exemplification  of  an  affidavit  made  by  an 
administrator  before  a  Judge  of  the  Court  of  Probate  was  pro- 
duced at  the  argument,  which,  it  was  claimed,  was  sufficient 
to  confer  jurisdiction  to  make  an  order,  the  validity  of  which 
was  questioned  at  the  trial,  on  the  ground  that  it  was  not  then 
shown  that  jurisdiction  to  make  it  had  been  acquired.  But  as 
the  cause  was  before  the  court  on  a  bill. of  exceptions,  and  not 
on  a  case,  the  court  refused  to  look  at  the  exemplified  copy, 
and  ordered  a  new  trial. 

In  Dresser  v.  Brooks,  (3  Barb.  429),  this  distinction  does  not 
appear  to  have  been  adverted  to,  and  no  reference  is  made  to 
Hart  v.  Coltrain.  The  only  decisions  cited  are,  14  Wend.,  126, 
13  $.,  524,  and  5  ib.,  535.  In  these  causes  the  defeated  party 
m'oved  for  a  new  trial  on  a  case. 

It  may  perhaps  be  said  of  Dresser  v.  Brooks,  that  although 
the  report  of  it  shows  that  exceptions  were  taken  at  the  trial, 
yet  it  does  not  state  that  that  case  came  before  the  court  on  a 
bill  of  exceptions.  If  before  the  court  on  a  case,  which 
reserved  no  right  that  it  should  be  turned  into  a  bill  of  excep- 
tions, the  decision  made  in  it  does  not  conflict  with  that  made 
in  Hart  v.  Coltrain.  We  have  been  referred  to  no  case  in 
which  a  re-argument  was  ordered  to  allow  such  proof  to  be 
given  after  the  verdict  had  been  set  aside  and  a  new  trial 
granted.  Nor  have  we  been  referred  to  any  case  in  which 
defective  proof  was  allowed  to  be  supplied  on  the  argument 
of  a  motion  for  a  new  tri^l,  even  when  such  proof  was  to  be 


NEW-YOKE.  317 


Fry  a.  Bennett. 


considered  by  the  court  only,  if  the  fact  to  be  proved  was  to 
be  established  by  the  viva  voce  testimony  of  witnesses,  or  by 
any  evidence  which  in  its  nature  was  controvertible. 

To  allow  such  a  motion,  would  assume  that  it  was  competent 
and  not  inexpedient  for  the  court,  after  reversing  a  judgment 
upon  an  exception  taken  at  the  trial,  and  after  both  parties 
had  been  heard  upon  it,  at  the  general  term,  to  vacate  the 
judgment  of  reversal,  and  allow  defective  evidence  to  be  sup- 
plied by  proofs,  to  be  given  at  the  general  term,  provided  the 
proofs  related  to  a  point  upon  which  evidence  was  to  be  given 
to  the  court  only,  and  then  rehear  the  appeal,  and  dispose  of 
it  as  if  such  proof  had  been  produced  at  the  trial. 

The  statute  requires  "  satisfactory  proof"  to  be  given  at  the 
trial ;  and  unless  it  is  there  given,  the  party  taking  such  a 
deposition,  has  no  right  to  read  it  at  all.  To  grant  this  appli- 
cation, would  be  equivalent  to  holding  that,  although  there  was, 
confessedly,  no  evidence  given  at  the  trial  of  the  absence  of 
the  witness  from  the  State,  yet  the  Court,  on  appeal,  and  on 
reviewing  an  exception  taken  to  such  an  admission  of  a  deposi- 
tion, might,  without  any  impropriety,  allow  witnesses  to  be 
examined  at  the  general  term,  to  prove  that  in  point  of  fact, 
the  person  who  had  been  examined  de  bene  esse  had  continued 
absent  from  the  State,  so  that  his  attendance  could  not  be  com- 
pelled by  the  ordinary  process  of  law.  Whether  an  appeal  at 
the  general  term  is  from  an  order  denying  a  motion  made  for  a 
new  trial  on  a  case,  or  from  a  decision  of  questions  of  law  upon 
a  bill  of  exceptions,  we  are  of  opinion  that  it  would  be  impro- 
per, and  highly  inexpedient,  to  so  extend  and  apply  the  rule  as 
it  would  be  necessary  to  do,  to  sustain  this  motion. 

The  motion  is  therefore  denied,  with  costs. 


318  ABBOTTS'  PKACTICE  REPORTS. 

Hilton  a.  Thurston. 

HILTON  a.  THURSTON. 

» 
New  York  Common  Pleas  ;  Special  Term,  February,  1855. 

VACATING  JUDGMENT. — NON  SEBVICE  OF  SUMMONS. 

'The  Court  will  not  set  aside  a  judgment  for  non-service  of  summons  when  it  appears 
that  although  the  defendant  had  notice  of  an  attempt  to  effect  service  upon  him, 
he  delayed  to  move,  until  supplementary  proceedings  were  instituted.* 

Motion  to  set  aside  judgment  for  irregularity. 

The  judgment  in  this  case  was  entered  upon  a  failure  to 
.answer  ;  the  usual  affidavit  of  service  of  the  summons  and  com- 
plaint being  filed.  The  defendant  now  denied  the  fact  of  ser- 
vice, by  his  own  affidavit,  and  also  produced  the  affidavit  of 
•one  Plumbager,  his  book-keeper,  who  stated  that  some  time  in 
November  he  was  served  with  a  summons  intended  for  Thurs- 
ton. He  told  the  young  man  making  the  service,  that  he  was 
not  Thurston.  "  Well,"  said  the  messenger,  "  you  may  give 
the  papers  to  him ; "  and  he  left  them  upon  a  chair,  near-by. 

DALY,  J. — (Orally). — The  judgment  is  not  irregular.  It  was 
entered  upon  a  regular  affidavit  of  the  service  of  the  summons 
and  complaint. 

The  defendant's  affidavit  now  states  that  the  person  serving 
the  summons  and  complaint,  left  them  with  the  defendant's  fore- 
man, Plumbager.  If  the  facts  were  as  stated  by  the  defendant,  he 
knew  that  an  attempt  had  been  made  to  commence  the  suit  by 
leaving  the  papers  at  his  place  of  business,  with  his  bookkeeper. 
From  the  admission  made  by  him,  it  appears  that  he  consulted 
his  attorney,  and  learning  that  the  service  was  insufficient,  he 
concluded  to  let  the  plaintiff  go  on.  He  denies  that  he  knew 
anything  of  the  judgment,  but  carefully  avoids  denying  that 
he  knew  of  the  service  of  the  papers  on  his  foreman,  or  that 
the  papers,  after  that  service,  came  into  his  possession.  He 
knowingly  suffered  the  plaintiff  to  go  on,  to  enter  up  judgment, 

*  See  also  Southwell  a.  Manyatt,  Ante  218. 


NEW-YORK.  319 


Broderick  a.  Boyle. 


issue  execution,  and  after  its  return,  to  institute  supplementary 
proceedings,  and  he  now  comes  into  court  and  moves  that  all 
the  proceedings  be  set  aside,  with  costs. 

Such  a  course  the  court  will  not  countenance.  It  has  long 
been  the  established  practice  of -the' court  that  a  party  must 
make  his  application  at  the  earliest  practicable  opportunity 
after  the  irregularity  of  which  he  complains  has  taken  place, 
and  not  knowingly  suffer  further  proceedings  to  be  taken. 

If  there  is  any  defence,  the  defendant  will  be  allowed  to 
come  in  and  defend  without  terms ;  but  as  the  fact  of  the  per- 
sonal service  of  the  summons  and  complaint  upon  the  defend- 
ant is  positively  sworn  to  by  the  affidavit 'on  file,  upon  which 
the  judgment  was  entered  up,  it  will  not  be  set  aside  upon 
such  a  case  as  the  defendant  discloses. 

See  Downes  v.  Witherington,  (2  Taunt.  243). 


BRODERICK  a.  BOYLE. 

New  York  Common  Pleas  /  Special  Term,  February,  1855. 
MECHANICS'  LIEN. — REQUISITES  OF  COMPLAINT. 

The  complaint  of  a  sub-contractor  who  seeks  to  enforce  a  mechanic's  lien  for  labor  or 
materials,  should  show  that  his  own  contract  with  the  contractor  was  made  in  con- 
formity with  the  terms  of  the  contractor's  contract  with  the  owner.*. 

Where  it  fails  to  show  this,  plaintiff  will  be  required  on  motion,  to  make  his  complaint 
more  definite  and  certain  in  this  respect. 

Motion  that  plaintiff  make  his  complaint  more  definite  and 
certain. 

The  complaint  in  this  action  was  filed  to  enforce  a  lien  for 
materials  furnished.  The  complaint  stated  that  the  materials 
were  furnished  by  plaintiff  in  pursuance  of  a  contract  made  by 
him  with  a  contractor  with  the  owner ;  but  it  did  not  state 
whether  or  not  that  contract  was  in  conformity  with  the  con- 
tract between  the  contractor  and  the  owner. 

DALY,  J. — (Orally). — The  law  gives  a  lien  in  two  cases : — 
1,  where  a  contract  is  made  with  the  owner.  2,  where  a 

*  See  also  Quin  a.  Me  Oliff,  post  322. 


320  ABBOTTS'  PRACTICE  REPORTS. 

Whitlock's  Case. 

contract  is  made  with  the  contractor  with  the  owner,  commonly 
called  the  first  contractor,  and  is  in  conformity  with  the  contract 
made  with  the  owner.  The  first  contractor  might  put  up  a  dif- 
ferent building  or  structure  than  that  provided  for  by  the  con- 
tract, and  the  party  who  performed  work  or  furnished  materials 
towards  the  erection  of  such  a  structure,  would  have  no  lien 
against  the  owner  of  the  land.  A  lien  against  the  owner  exists 
only  when  the  work  performed  or  the  materials  furnished  by 
the  sub-contractor  is  contemplated  by  the  contract  between  the 
owner  and  the  first  contractor.  In  the  language  of  the  statute, 
the  sub-contractor's  contract  with  the  first  contractor  must  be 
in  conformity  with  the  original  contract  made  by  the  owner. 

The  complaint  must  be  amended.     In  its  present  form  it 
does  not  set  forth  a  sufficient  cause  of  action. 


WHITLOCK'S  CASE. 

New  York  Common  Pleas  /  In  Chambers,  February ',  1855, 
EXAMINATION  OF  JUDGMENT  DEBTOR. — REQUISITES  OF  AFFIDAVIT. 

When  it  will  be  presumed  that  a  judgment  was  for  twenty-five  dollars,  exclusive  of 
costs. 

Order  for  the  examination  of  a  judgment  debtor. 

The  affidavit  on  which  the  order  had  been  obtained,  stated, 
that  a  judgment  was  recovered  against  the  judgment  debtor 
sought  to  be  examined,  in  the  First  District  Court  of  the  city 
of  New  York,  for  $33  12 ;  and  that  another  judgment  was 
recovered  against  him  by  the  same  plaintiff,  in  the  Marine 
Court,  for  $511  56.  It  did  not  state  in  terms  that  these  judg- 
ments were  for  twenty-five  dollars,  exclusive  of  costs. 

S.  Jones,  for  the  judgment  debtor,  objected  that  the  affida- 
vit was  insufficient  to  support  an  order  for  examination,  inas- 
much as  it  did  not  show  that  the  judgments  were  for  $25, 
exclusive  of  costs. 

B.  V.  Abbott,  contended  that  this  was  sufficiently  shown. 


NEW-YORK.  321 


Foster  a.  Poillon. 


DALY,  J. — (Orally). — In  the  Marine  Court,  by  the  act  of 
1852;  the  plaintiff  can  recover  no  costs,  unless  he  recover  fifty 
dollars.  The  amount  of  the  judgment  as  stated  in  the  affidavit, 
is  five  hundred  and  eleven  dollars.  It  must  be  for  twenty-five 
dollars,  exclusive  of  costs,  because  the  plaintiff  could  have 
recovered  no  costs,  unless  he  recovered  at  least  fifty  dollars. 
The  allegation  that  that  judgment  is  for  twenty-five  dollars, 
exclusive  of  costs,  was  therefore  unnecessary  in  the  affidavit.  . 

In  the  District  Court,  the  costs  are  limited  to  five  dollars. 
Here  the  amount  of  the  judgment  is  stated  to  be  thirty-three 
dollars  and  upwards,  so  that  it  must  have  been  for  twenty-five 
dollars,  exclusive  of  costs. 

The  examination  proceeded. 


FOSTER  a.  POILLON. 

New  York  Common  Pleas  ;  Special  Term.,  February,  1855. 
MECHANICS'  LIEN. — REQUISITES  OF  COMPLAINT. 

A  complaint  filed  to  enforce  a  mechanic's  lien,  should  show  that  such  is  its  object. 

Motion  to  set  aside  a  complaint  for  irregularity. 

In  this  case  papers  were  served  for  the  foreclosure  of  a 
mechanic's  lien ;  but  the  complaint  filed,  contained  nothing 
about  any  claim  for  a  lien.  It  merely  set  forth  in  the  usual 
form  the  indebtedness  of  defendant  for  work,  labor  and  mate- 
rials furnished.  The  defendant  moved  to  set  it  aside. 

Bellows,  for  the  motion.  As  the  complaint  is  regular  upon 
its  face,  we  could  not  demur.  "We  therefore  move  to  set  it 
aside.  The  notice  is  equivalent  to  a  summons,  and  according 
to  the  former  practice,  if  the  complaint  did  not  agree  with  the 
summons,  it  would  be  set  aside.  Here  the  summons  or  notice 
is  for  the  foreclosure  of  a  lien  ;  but  the  complaint  says  nothing 

about  any  lien. 

21 


322  ABBOTTS'  PRACTICE  REPORTS. 


Quin  a.  Me  Oliff. 


Wdite,  opposed.  "VVe  are  not  bound  to  state  in  our  com- 
plaint that  proceedings  have  been  instituted  to  enforce  a  lien. 
We  file  our  complaint  to  recover  for  work  and  labor  generally. 

DALY,  J. — You  are  required  to  show  that  you  have  a  claim 
against  the  owner.  If  you  made  no  contract  with  him,  it  must 
appear  that  you  made  a  contract  with  the  person  who  con- 
,  tracted  with  him  to  erect  the  building,  and  that  that  contract 
was  in  conformity  with  the  contract  with  the  owner,  or  you 
have  no  lien  and  no  cause  of  action  against  the  owner. 

Waite. — We  made  our  contract  directly  with  the  owner. 

DALY,  J. — (Orally). — Issue  is  to  be  joined  in  the  language 
of  the  statute,  upon  the  claim  made — that  is,  the  claim  made  in 
the  notice  to  appear  and  submit  to  the  accounting.  The 
plaintiff  claims,  by  virtue  of  his  contract,  to  enforce  a  lien 
upon  the  building,  and  the.  peculiar  nature  of  that  claim 
should  appear  by  the  complaint.  This  is  essential  to  the  judg- 
ment which  he  seeks,  or  rather  to  the  right  claimed  by  him,  to 
enforce  his  lien  by  execution  against  the  specific  building. 

Plaintiff  had  liberty  to  amend. 


.  QUIN  a.  McOLIFF. 

New  York  Common  Pleas  ;  Special  Term,  February,  1855. 
MECHANICS'  LIEN. — REQUISITES  OF  COMPLAINT. 

The  complaint  of  a  sub-contractor  who  seeks  to  enforce  a  mechanic's  lien  for  labor  or 
materials,  should  show  that  his  own  contract  with  the  contractor  was  made  in 
conformity  with  the  terms  of  the  contractor's  contract  with  the  owner. 

Motion  for  an  injunction. 

This  was  an  action  brought  against  McOliff,  and  the  cor- 
poration of  the  city  of  New  York.  Its  object  was  to  foreclose 
a  mechanic's  lien,  claimed  by  the  plaintiff,  upon  a  building 
owned  by  the  corporation.  The  plaintiff  had  done  work  upon 


NEW-YORK  323 


Quin  a.  McOliff. 


the  bnilding  in  pursuance  with  a  contract  between  himself  and 
McOliff,  who  had  contracted  with  the  corporation. 

The,  corporation  appeared  in  the  action ;  but  the  defendant, 
McOliff,  made  default. 

The  plaintiff  apprehending  that  the  defendants  were  about 
to  tear  down  the  building  to  which  his  lien  attached,  moved 
for  an  injunction  to  restrain  them  from  so  doing,  on  the  ground 
that  to  tear  it  down,  would  be  doing  an  act  tending  to  render 
his  judgment  ineffectual. 

The  defendant,  McOliff,  appeared  by  counsel  to  oppose  the 
granting  of  the  injunction. 

Bellows,  for  defendant,  McOliff.  The  order  to  show  cause 
why  an  injunction  should  not  be  granted,  was  served  upon 
McOliff.  He,  as  well  as  the  corporation,  is  sought  to  be 
restrained,  and  he  is  entitled  to  appear  at  this  stage  of  the  pro- 
ceedings to  oppose  the  application. 

The  plaintiff  is  not  entitled  to  an  injunction,  unless  it  appears 
by  his  complaint  that  he  is  entitled  to  the  relief  demanded. 
(Code,  §  219).  His  complaint  shows  no  cause  of  action.  It 
merely  states  that  he  performed  work  and  furnished  materials 
in  pursuance  of  a  contract  with  McOliff.  This  is  not  enough 
to  give  him  a  lien. 

DALY,  J. — (Orally).  The  corporation  being  the  owner  and 
Cliff  the  contractor,  it  ought  to  appear  by  the  complaint  that 
the  work  was  performed  and  the  materials  were  furnished 
by  the  plaintiff  to  McOliff,  in  conformity  with  the  terms  of  the 
contract  made  ly  McOliff,  with  the  owner,  the  corporation. 
This  was  essential  to  the  right  of  lien.  The  complaint  con- 
tains no  such  averment,  nor  does  that  fact  appear  even  by  the 
notice  filed  with  the  county  clerk.  No  right  of  action  was 
shown  by  the  complaint,  and  no  injunction  can  be  granted. 


324:  ABBOTTS'  PBACTTCE  REPORTS. 

James  a.  Oakley. 

JAMES  a.  OAKLEY. 

New  York  Superior  Court,  Special  Term  •  March,  1855. 
MORTGAGE  SECURITY. — USURY. 

A  mortgagor  of  chattels  cannot,  after  sale  of  the  chattels  to  a  third  party,  sustain  an 
action  to  cancel  the  mortgage  and  notes  secured  by  it,  and  to  enjoin  proceedings 
to  enforce  it,  on  the  ground  of  usury  in  the  loan  for  which  it  was  given. 

It  seems,  that  the  purchaser  of  property  subject  to  a  mortgage,  cannot  avoid  the 
mortgage  on  the  ground  of  usury. 

Application  for  an  injunction  to  restrain  the  foreclosure  of 
a  chattel  mortgage,  and  sale  of  the  property,  on  the  ground  of 
usury  in  the  loan. 

S.  Sanxay,  for  plaintiff. 

J.  S.  Jenness,  for  defendant. 

HOFFMAN,  J. — The  plaintiff  on  the  7th  day  of  October,  1854-, 
borrowed  of  the  defendant  the  sura  of  $2000,  to  be  repaid 
in  equal  amounts,  in  six  monthly  payments ;  for  which 
he  gave  six  promissory  notes,  for  $333  33  each;  and,  as 
security,  executed  a  chattel  mortgage  upon  thirty  sewing 
machines,  described  in  the  complaint.  The  loan  is  alleged  to 
have  been  usurious  by  an  exaction  and  taking  of  ten  cents  a 
day  upon  every  hundred  dollars  of  the  amount ;  and  that  for 
three  months  the  usury  was  actually  paid.  The  defendant 
threatens  to  take  possession  of  the  property,  and  to  apply  it  in 
satisfaction  of  his  demand.  The  prayer  is,  that  the  notes  and 
mortgage  be  cancelled,  and  an  injunction  issue,  restraining  the 
defendant  from  any  proceedings  to  enforce  the  security. 

The  defendant  has  taken  possession  and  advertised  the  pro- 
perty for  sale. 

The  case  made  by  the  affidavits  of  the  defendant  in  opposi- 
tion to  the  motion,  is  this :  that  the  plaintiff,  the  mortgagor, 
had  sold,  in  January  last,  all  the  property  covered  by  the 
mortgage,  to  one  Alfred  Hyde ;  that  Hyde  had  agreed  to 
assume  and  pay  the  mortgage,  and  had  several  times  informed 


NEW-YORK.  325 


Taylor  a.   Monnot. 


the  defendant  that  he  would  pay  it,  and  was  about  to  pay 
it  off. 

The  allegation  is  sustained  by  several  affidavits,  besides  the 
defendant's  shewing  declarations  of  Hyde,  that  he  had  made  the 
purchase,  and  declarations  of  the  plaintiff,  that  he  had  sold  to 
Hyde.  Oakley,  it  is  to  be  observed,  does  -not  deny  the  usury. 
His  statement  in  the  last  clause  of  his  affidavit  cannot  be 
treated  as  such  a  denial. 

One  of  the  deponents  (I.  W.  Somerindyke,)  swears,  that  he 
was  shown  by  Hyde  what  purported  to  be  a  bill  of  sale  from 
James,  the  plaintiff,  to  him,  of  the  property  in  question. 

These  affidavits  show  in  the  first  instance,  at  any  rate,  that 
the  plaintiff  has  no  longer  any  right  or  title  in  the  property, 
which  will  enable  him  to  sustain  an  action  concerning  it. 
There  is  no  affidavit  of  Hyde  produced  or  offered  tending  to 
disprove  these  facts ;  but  Alfred  Hyde  is  one  of  the  plaintiff's 
sureties  in  the  undertaking. 

It  may  be,  that  this  is  a  scheme  to  cancel  the  mortgage  for 
his  benefit,  when,  as  purchaser,  he  himself  could  not  avoid  it, 
on  the  ground  of  usury.  (Post  v.  the  Bank  of  Utica,  7  Hill, 
393.  Wells  v.  Gibson,  4  Sand.  Ch.  Rep.,  337).  But  without 
entering  upon  that  question,  it  is  sufficient  to  say,  that  the 
plaintiff  appears  not  to  have  at  present  any  right  or  interest  in 
the  property. 

The  motion  for  the  injunction  must  be  denied,  with  ten 
dollars  costs,  and  the  order  for  the  temporary  injunction,  made 
the  23d  day  of  February  last,  be  vacated. 


TAYLOR  a.  MONNOT. 

New  York  Superior  Court  •  General  Term,  December,  1854. 
INNKEEPER'S  LIABILITY. — EVIDENCE. — TESTIMONY  OF  PLAINTIFF. 

The  case  of  Wintermute  v.  Clark,  (5  Sandf.  S.  C.  R.  242),  approved. 

It  seems,  that  the  liability  of  an  innkeeper  for  the  baggage  of  his  guest,  is  not  con- 
fined to  personal  baggage,  but  extends  to  all  the  property,  which  as  the  property 
of  his  guest,  the  innkeeper  consents  to  receive.* 

The  guest  is  a  competent  witness  in  an  action  between  himself  and  the  innkeeper, 
to  prove  the  character  and  value  of  the  property  lost,  so  far  as  it  is  personal  bag- 
gage ;  but  so  far  only. 

*  Compare  Needles  v.  Howard,  (1  Smith's  C.  P.  R.  54). 


826  ABBOTTS'  PRACTICE  REPORTS. 


Taylor  a.  Monnot. 


Money  in  a  trunk,  not  exceeding  the  amount  reasonably  required  by  the  traveller  to 
defray  the  expenses  of  the  journey  which  he  has  undertaken,  is  a  part  of  his 
baggage  ;*  and  in  case  of  its  loss,  the  plaintiff  may  prove  its  amount  by  his  own 
testimony. 

Yerdict  for  plaintiff,  subject  to  the  opinion  of  the  general  term. 

This  action  was  brought  to  recover  money  stolen  from  the 
plaintiff's  portmanteau,  while  he  was  staying  as  a  guest  at  the 
New  York  Hotel,  kept  by  the  defendant. 

The  answer  denied  that  the  house  kept  by  the  defendant, 
was  a  common  inn,  averring  that  it  was  a  boarding  house.  It 
also  denied  the  loss  alleged  by  plaintiff,  and  averred  that  if  lost 
at  all,  the  money  was  lost  by  the  plaintiff's  own  negligence. 

Upon  the  trial  the  plaintiff  proved  by  the  testimony  of 
travelling  companions,  that  on  the  10th  January,  1853,  he  put 
up  at  the  defendant's  hotel;  that  on  the  llth,  he  locked  the 
door  of  his  room  and  went  to  dinner,  and  on  his  return,  he 
found  the  door  unlocked,  the  lock  of  his  portmanteau  broken 
open,  its  contents  scattered  about  the  room  ;  and  also  by  the 
same  testimony,  that  he  had  been  accustomed  to  keep  his 
money,  which  was  mostly  in  gold,  in  his  portmanteau.  The 
testimony  of  the  plaintiff  was  then  offered,  to  show  the  con- 
tents of  his  portmanteau.  It  was  objected  to  as  incompetent, 
but  admitted,  and  exception  taken.  It  showed  that  among 
other  articles  in  his  portmanteau,  was  his  purse,  containing 
$353  24,  which  was  stolen. 

The  defendant  then  offered  to  prove  by  the  testimony  of 
hotel  keepers  and  others,  that  a  portmanteau  was  an  unsafe 
place  in  which  to  deposit  money,  at  a  hotel.  The  plaintiff 
objected,  and  the  court  excluded  the  evidence. 

The  jury,  under  direction  of  the  court,  found  a  verdict  for 
the  plaintiff  for  $384  80,  the  amount  claimed,  with  interest, 
subject  to  the  opinion  of  the  court,  on  a  special  case,  to  be 
first  heard  at  the  general  term. 

J.  W.  Edmonds,  for  plaintiff. 

E.  Logan,  for  defendant. 

*  But  see  Grant  a.  Newton,  (1  Smith's  C.  P.  R.  95).  It  was  held  in  Duffy  a. 
Thompson,  decided  in  the  New  York  Common  Pleas,  General  Term,  March,  1855, 
but  not  yet  reported,  that  money  carried  in  the  trunk  of  a  traveller  while  on  a  voyage 
to  a  foreign  country,  is  a  part  of  his  baggage  ;  such  a  case  not  coming  within  the 
principle  of  Grant  a.  Newton. 


NEW-YORK.  327 


Taylor  a.  Monnot. 


DUER,  J. — The  question  raised  in  the  answer,  and  upon  the 
trial,  whether  the  hotel  of  the  defendant  is  in  judgment  of  law 
a  common  inn,  was  not  pressed  upon  the  argument  before  us, 
and  so  far  as  this  court  is  concerned,  must  be  regarded  as 
settled  by  our  decision,  in  Wintermute  v.  Clark,  (5  Sandf.  8.  C. 
7?.,  p.  242).  The  cases  in  regard  to  this  question  are  not 
distinguishable. 

The  liability  of  an  innkeeper  is  by  no  means  so  restricted  as 
that  of  a  carrier  of  passengers.  It  is  not  confined  to  the  per- 
sonal baggage  of  the  guest,  but  probably  extends  to  all  the 
property  which,  as  belonging  to  the  guest,  the  innkeeper  con- 
sents to  receive.  Hence  if  in  this  case  the  plaintiff's  loss  and 
its  amount  had  been  proved  by  other  witnesses  than  the  plain- 
tiff himself,  not  a  reasonable  doubt  could  have  been  stated  as 
to  his  right  of  recovery.  But  if  the  testimony  of  the  plaintiff 
must  be  rejected,  it  cannot  be  denied  that  the  proof  upon  the 
trial  was  wholly  insufficient  to  sustain  the  action.  The  case 
therefore  turns  entirely  upon  the  question  whether  the  plain- 
tiff was  properly  admitted  as  a  witness. 

We  are  by  no  means  prepared  or  disposed  to  say  that  in 
actions  like  the  present,  the  plaintiff  is  a  competent  witness 
to  prove  the  nature  and  extent  of  his  loss,  whatever  may  be 
the  character  or  value  of  the  property  which  it  is  alleged  the 
loss  involved.  On  the  contrary,  we  are  clearly  of  the  opinion 
that  his  admissibility  as  a  witness,  rests  upon  the  same  ground, 
and  is  subject  to  the  same  limitation,  as  that  of  a  passenger 
admitted  to  prove  his  own  loss  in  an  action  against  a  carrier ; 
and  after  a  careful  examination  of  the  authorities,  we  think 
the  law  ought  to  be  considered  as  settled,  that  in  such  cases,  the 
passenger  is,  to  some  extent,  a  competent  witness  on  his  own 
behalf.  He  is  so  to  prove  the  contents  of  a  trunk  lost  or  broken 
open,  but  only  in  respect  to  those  articles  which  may  be  prop- 
erly considered  as  a  part  of  his  personal  baggage ;  that  is,  as 
intended  for  his  personal  use  or  accommodation.  It  is  pre- 
sumed that  the  contents  of  the  trunk  in  respect  to  such  arti- 
cles, are  known  to  the  owner  alone,  and,  consequently  that 
were  his  testimony  excluded,  he  would  be  without  a  remedy. 
He  is  admitted  therefore  as  a  witness  to  prevent  a  failure  of 
justice — in  other  words,  from  a  moral  necessity.  (12  Viner 


328  ABBOTTS'  PRACTICE  REPORTS. 


Taylor  a.  Monnot. 


Air.  p.  32.  Bull,  N.  P.  181.  Story  on  Bailm.,  §  454,  (note).  1 
Greenleaf  on  Ev.,  §  348,  p.  417,  and  note  2.  Sneider  v.  Geiss, 
1  Yeates,  34.  Herman  v.  Drinkwater,  1  Green.  R.,  27.  Clark 
•y.  Spence,  10  Watts,  335.  Johnson  v.  Stone,  11  Humphrey, 
419).  It  is  plain  that  the  same  necessity  exists  when  the  trav- 
eller is  a  temporary  guest  at  an  inn,  and  equally  so,  that  it 
extends  no  further  in  the  one  case  than  in  the  other. 

It  is  insisted,  however,  that  money  in  a  trunk,  although  not 
exceeding  in  amount  the  sum  which  the  traveller  in  good  faith 
has  judged  to  be  necessary  to  defray  his  personal  expenses, 
cannot  properly  be  regarded  as  forming  a  part  of  his  "  bag- 
gage," in  the  limited  sense  of  the  term,  and  consequently  that 
in  respect  to  money,  the  testimony  of  the  traveller,  whether  a 
passenger  or  guest,  cannot  be  received  to  prove  the  fact,  or  the 
amount  of  his  loss.  But  we  think  that  Mr.  Justice  Nelson  in 
delivering  the  judgment  of  the  court  in  the  case  of  the  Orange 
County  Bank  v.  Brown,  (9  Wend.,  119,)  laid  down  the  true  rule, 
namely :  that  money  intended  to  defray  the  personal  expenses 
of  the  traveller,  may  be  justly  included  in  the  term  "  bag- 
gage," and  we  adopt  the  opinion  not  only  as  reasonable  in 
itself,  but  as  best  sustained  by  the  authorities.  In  the  case  of 
Coles  v.  Goodwin,  (19  Wend.,  251),  the  trunk,  for  the  loss  of 
which,  and  its  contents,  the  defendants,  as  carriers,  were  held 
to  be  liable,  contained  a  small  sum  of  money,  which  the  ver- 
dict of  the  jury  embraced,  but  which,  had  it  not  been  consid- 
ered as  forming  a  part  of  the  baggage"  of  the  plaintiff,  ought 
to  have  been,  and,  we  must  presurne,  would  have  been  deducted 
from  the  judgment.  It  may  be  said,  that  in  this  case,  the  ques- 
tion as  to  the  liability  of  the  defendants  for  the  money,  was 
not  distinctly  raised  ;  but  this  exception  cannot  be  taken  to  the 
case  to  which  I  shall  nex£  refer,  in  which  the  question  whether 
money  in  a  trunk,  not  more  than  sufficient  for  the  traveller's 
expenses,  may  be  considered  as  part  of  his  baggage,  was  not 
only  raised  and  argued,  but,  as  we  think,  positively  and  affirma- 
tively decided.  * 

In  this  case,  Weed  v.  The  Saratoga  and  Schenectady  R.'R. 
Co.  (19  Wend.  534),  the  verdict  of  the  jury  was  rendered 
solely  for  a  sum  of  money,  ($285),  contained  in  a  trunk,  which 
the  defendants,  as  carriers,  had  lost,  and  their  counsel  upon  the 


NEW-YORK.  329 


Taylor  a.  Monnot. 


trial,  contended  that  they  were  not  liable  upon  the  grounds 
that  they  had  received  no  reward  for  carrying  the  money,  and 
that  no  notice  had  been  given  to  them  that  any  money  was 
contained  in  the  trunk.  The  judge  overruled  the  motion  for  a 
nonsuit,  and  charged  the  jury,  that  if  they  were  satisfied  that 
the  trunk  had  been  committed  to  the  care  of  the  defendants, 
and  was  lost  by  them,  the  plaintiffs  were  entitled  to  recover, 
unless  they  should  be  of  opinion  that  the  amount  of  money  in 
the  trunk  was  so  large  as  to  render  the  want  of  notice  a  fraud 
upon  the  carriers,  or  that  it  was  more  than  a  reasonable  and 
sufficient  sum  for  travelling  expenses.  The  jury  having  found  a 
verdict  for  the  plaintiffs,  the  defendant's  counsel  upon  the 
exceptions  which  they  had  taken  to  the  charge  of  the  judge, 
moved  for  a  new  trial. 

In  delivering  the  opinion  of  the  court  upon  this  motion, 
Cowen,  J.  said,  that  the  question  whether  the  money  in  the 
trunk  "  was  more  than  sufficient  for  travelling  expenses,  and  so 
not  apart  of  the  baggage,  had  been  left  to  the  jury  in  a  shape- 
as  favorable  to  the  defendant  as  the  law  would  require,  and  per- 
haps more  so  y"  and  he  referred  in  support  of  his  opinion  to  the 
case  of  the  Orange  County  Bank  v.  Brown,  thus  adopting  the 
rule  there  suggested  by  Nelson,  J.,  as  that  by  which  the  court 
meant  to  be  governed.  The  motion  for  a  new  trial  was,  how- 
ever, granted ;  but  granted  upon  the  sole  ground,  that  there 
was  no  such  privity  of  contract  between  the  parties  as  could 
entitle  the  plaintiffs,  in  their  own  names,  to  maintain  the 
action.  Although  the  money  belonged  to  them,  it  was  con- 
tained in  the  trunk  of  their  clerk,  who  was  travelling  as  their 
collecting  agent,  and  was  reserved  by  him  for  the  expenses  of 
his  journey.  Had  the  action  been  brought,  as  it  ought  to  have 
been,  in  the  name  of  the  clerk,  it  is  certain  that  judgment 
would  have  been  rendered  in  his  favor.  "We  see  therefore  no 
reason  to  doubt  that  the  decision  of  the  Court  upon  the  ques- 
tion we  are  considering,  is  entitled  to  the  same  weight  and 
authority  as  if  the  action  had  been  properly  brought,  and  a 
judgment  for  the  plaintiff  actually  rendered. 

We  cannot  think  that  these  authorities  are  countervailed  or 
at  all  shaken  by  the  doubts  expressed  by  Mr.  Justice  Bronson 
in  the  case  of  Hawkins  v.  Hoffman,  (6  Hill,  598).  The  learned 


330  ABBOTTS'  PRACTICE  REPORTS. 

Taylor  a.  Monnot. 

judge  rested  his  doubts  entirely  upon  the  assertion  that  "  men 
usually  carry  money  to  pay  travelling  expenses,  about  their 
persons,  and  not  in  their  trunks  and  boxes  ;  "  but  we  have  no 
knowledge,  judicial  or  personal,  of  any  such  general  usage  as 
he  supposes  to  exist.  We  are  persuaded,  on  the  contrary,  that 
the  usage  varies  according  to  the  character  of  the  journey,  the 
sum  necessary  to  be  carried,  and  the  personal  habits  of  the 
traveller,  and  that  in  a  large  class  of  cases,  including  that  now 
before  us,  the  general  usage,  is  directly  opposite  to  that  of 
which  the  existence  is  assumed.  Foreign  travellers  in  the 
United  States,  in  order  to  save  themselves  from  the  embarrass- 
ments and  losses  they  would  otherwise  incur  from  their  igno- 
rance of  the  local  currency  in  the  different  States  which  they 
visit,  usually  take  with  them  in  specie  the  sums  which  they 
deem  to  be  necessary  for  their  personal  expenses ;  and  that  it 
is  safer,  as  well  as  more  convenient,  to  carry  a  purse  of  gold 
or  silver  in  a  locked  trunk,  than  about  the  person,  we  think 
will  hardly  be  doubted.  In  the  absence  of  proof  to  the  con- 
trary, we  have  no  right  to  say  that  such  is  not  the  usage. 

Since  the  case  of  Hawkins  v.  Hoffman,  the  exact  question 
has  arisen  and  been  determined  in  the  Supreme  Court  of  Mas- 
sachusetts, in  the  case  of  Jordan  v.  The  Fall  River  R.  R.  Co., 
(5  Gushing,  69).  The  learned  Judge  who  delivered  the  opinion 
of  the  court,  reviews  and  examines  the  cases  I  have  cited,  and 
expressing  his  dissent  from  the  views  of  Mr.  J.  Bronson,  arrives 
at  the  conclusion,  "  that  money  in  a  trunk  taken  l>onajide  for 
travelling  expenses  and  personal  use,  may  properly  be  regarded 
as  a  part  of  a  traveller's  baggage,  for  the  loss  of  which  the 
carrier  is  responsible,"  and  consequently  to  prove  the  loss  of 
which  the  traveller  is  himself  a  competent  witness.  The  like 
decision  has  been  made  by  the  Supreme  Court  of  Tennessee,  in 
two  cases — Bomar  v.  Maxwell,  (9  Humphrey  JR.,  61),  and 
Johnson  v.  Stone,  (11  Humph.,  419).  In  the  last  case,  the 
plaintiff  was  admitted  as  a  witness  to  prove  the  loss. 

In  the  case  before  us,  it  was  sufficiently  proved,  and  was  not 
denied  upon  the  trial,  that  the  money  lost  by  the  plaintiff,  was 
intended  for  his  personal  expenses,  nor  was  it  asserted  that  it 
exceeded  a  reasonable  amount  for  that  purpose.  Hence  these 
questions  were  not  submitted  to  the  jury,  nor  was  there  any 


NEW-YORK.  331 


Slack  a.  Heath. 


exception  to  the  charge  of  the  judge,  upon  the  ground  of  the 
omission. 

The  only  exceptions  that  were  taken  in  addition  to  that 
which  we  have  considered  and  overruled,  were  to  the  refusal 
of  the  judge,  to  submit  to  the  determination  of  the  jury,  the 
question  of  negligence  on  the  part  of  the  plaintiff,  and  to  his 
rejection  of  the  offer  to  prove  by  the.  opinions  of  hotel- 
keepers  and  others,  that  the  locked  portmanteau  of  the  plain- 
tiff was  an  unsafe  place  for  the  deposit  of  his  money.  We  are 
all  of  opinion  that  neither  of  these  exceptions  was  well  taken. 
No  facts  were  proved  from  which  the  jury  could  have  been 
warranted  to  infer  that  the  plaintiff  was  guilty  of  any  negli- 
gence, which  contributed  to  the  loss,  and  upon  such  a  question, 
the  opinions  of  witnesses  ignorant  of  the  .facts,  were  certainly 
not  admissible  as  evidence. 

The  plaintiff  is  therefore  entitled  to  judgment  upon  the  ver- 
dict as  rendered. 


SLACK  a.  HEATH. 

^T'  2fy 
New  York  Common  Pleas  /  General  Term,  March,  1855. 

PLEADING. — ACTION  UPON   UNDERTAKING. 

Lnder  the  Code,  the  recitals  of  an    instrument    averred   in   a  complaint  to  have 

been  executed  by  the  defendant,  have   the    same  effect    as  specific  averments 

of  the  truth  of  the  facts  recited.     Woodruff,  J.  dissenting. 
It  is  improper  to  set   up   in    an    answer   that    the    complaint   does    not  contain 

facts  sufficient  to  constitute  a  cause  of  action. 
Where  a  statute  prescribes  the  giving  of  an   instrument,  and  its   purport,  it  is 

consideration  enough  to  support  the   instrument,  that   it    was  given  pursuant 

to  the  statute,  and  has  its  sanction. 
It  is  no  objection    to    an  undertaking  given  by   the  defendant  for  the  return  of 

specific  personal  property,  which  has  been  taken  from  him   by  requisition  on 

the  part  of  the   plaintiff,  that   the    undertaking   purports   to   be  given  to  the 

plaintiff",  and  not  to  the  sheriff. 
In  an  action  against  the  sureties  in  such  an  undertaking,  it  is  not  necessary  to 

aver  the  issuing  of  execution  against  the  original  defendant. 

Appeal,  upon  a  bill  of  exceptions. 

This  action  was  brought  against  John  Heath  and  J.  II.  Col- 


332  ABBOTTS'  PRACTICE  REPORTS. 

Slack  a.  Heath. 

ton,  upon  an  undertaking  alleged  to  have  been  given  by  them 
under  the  following  circumstances  : 

In  1850,  Almy  Slack,  the  plaintiff,  commenced  an  action  in 
the  Supreme  Court  against  Thomas  Carnley,  then  sheriff  of  the 
city  and  county  of  New  York,  to  recover  certain  specific  per- 
sonal property.  She  caused  that  property  to  be  taken  by  the 
coroner ;  and  Carnley  being  desirous  that  it  should  be  returned 
to  him,  procured  the  undertaking  now  in  suit  to  be  given  by 
the  present  defendants. 

The  plaintiff's  complaint  in  the  present  action  alleged  that 
she  commenced  an  action  against  Carnley,  and  that  in  the 
course  of  that  action,  the  undertaking  was  given  by  the  de- 
fendants ;  and  the  undertaking  was  set  out  in  full.  But  it  did 
not  state  what  was  the  nature  of  the  action,  or  what  proceed- 
ings were  had  in  it ;  except  that  these  things  were  recited  in 
the  undertaking  itself.  After  setting  forth  the  undertaking,  the 
complaint  proceeded  to  state  that  the  plaintiff  recovered  a 
judgment  against  Carnley,  which  was  still  unpaid ;  but 
•whether  she  had  ever  endeavored  to  collect  it  by  execution,  or 
not,  did  not  appear.  * 

The  answer  denied  the  making  of  the  undertaking,  and  also 
averred  that  the  plaintiff  had  it  in  her  power  to  collect  the 
judgment  against  Carnley,  by  execution  ;  and  set  up  that  the 
plaintiff  had  no  cause  of  action  against  the  defendants,  until 
the  return  of  the  execution  against  Carnley  unsatisfied. 

Upon  the  trial  before  Daly,  J.,  neither  party  introduced 
evidence ;  but  the  defendant  moved  for  a  nonsuit  upon  the 
pleadings,  upon  a  number  of  grounds  which  amounted  in 
substance  to  this  :  that  the  complaint  did  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.  The  court  denied  the 
motion,  and  instructed  the  jury  to  find  for  the  plaintiff.  Judg- 
ment having  been  entered  upon  their  verdict,  the  defendants 
appealed  to  the  general  term. 

The  substance  of  the  pleadings,  and  the  principal  objections 
to  the  complaint  taken  by  the  defendant,  are  fully  stated  in 
the  opinions,  particularly  the  opinion  of  Woodruff,  J.  The 
question  most  considered  upon  the  appeal  was,  whether  the 
circumstances  under  which  the  undertaking  was  given  might 
be  inferred  from  the  recitals  of  the  undertaking  itself,  or 


NEW-YORK.  333 


Slack  a.  Heath. 


whether  it  was  requisite  that  the  plaintiff  should  have  averred 
them  independently,  and  directly,  in  addition  to  setting  forth 
the  undertaking.  Upon  this  question  the  court  were  divided ; 
the  majority  being  of  the  opinion  that  the  complaint  was  good. 
Upon  the  other  points  raised,  the  three  judges  were  agreed, 
and  Judge  Woodruff  states  the  opinion  of  the  court. 

E.   W.  and  G.  F.  Chester,  for  appellants. 
C.  N.  Potter,  for  respondent. 

DALY,  J. — The  plaintiff  avers  that  an  action  was  com- 
menced, and  that  in  the  course  of  such  action,  such  proceed- 
ings were  afterwards  had,  that  the  defendants  made  and 
delivered  to  the  plaintiff  the  undertaking  which  is  set  forth. 

The  inspection  of  the  instrument  shows  that  it  is  the  kind  of 
undertaking  provided  for  by  the  statute,  in  an  action  brought 
to  recover  the  possession  of  personal  property,  and  I  think  that 
the  averment  in  connection  with  the  undertaking  indicates, 
with  sufficient  certainty,  the  nature  of  that  action. 

The  recitals,  moreover,  in  the  undertaking,  describe,  with  all 
necessary  certainty  and  precision,  an  action  in  which  the  plain- 
tiff claimed  the  delivery  to  her  of  certain  personal  property, 
for  the  delivery  of  which,  in  the  event  of  the  action  being 
determined  in  her  favor,  the  defendants  became  bound  ;  and  I 
know  no  good  reason,  under  our  present  system  of  pleading, 
why  the  recitals  in  an  instrument  averred  to  have  been  execu- 
ted by  the  defendants,  should  not  have  the  same  force  and 
effect  in  a  pleading  as  a  specific  averment  alleging  the  truth 
of  that  which  the  defendants  have  admitted  by  executing  the 
instrument. 

I  think  it  is  sacrificing  too  much  to  form,  to  hold  that  where 
an  instrument  is  set  forth  in  a  pleading  embodying  certain 
facts  admitted  by  the  execution  of  the  instrument,  that  they 
are  not  to  be  taken  as  facts  .constituting  a  statement  of  the 
cause  of  action,  without  a  formal  averment  of  their  truth. 

The  real  object  of  a  pleading  is  to  apprise  the  opposite  party 
of  the  nature  of  the  claim  or  of  the  defence,  and  where  sub- 
stantially it  performs  that  office,  it  is  all. that  is  required.  The 
present  pleading,  in  my  judgment,  does  so.  It  could  not  have 


334  ABBOTTS'  PRACTICE  REPORTS. 

Slack  a.  Heath. 

the  effect  of  misleading  the  defendant.  The  nice  discrimina- 
tion of  the  counsel  who  raised  the  objection  upon  the  trial, 
may  have  detected  in  it  a  want  of  that  precision  and  exactness 
which,  before  the  Code,  was  deemed  essential  in  setting  forth 
a  cause  of  action,  but  I  think,  under  the  less  formal  system 
that  now-prevails,  that  it  discloses  the  nature  and  causes  of  the 
action,  with  sufficient  legal  certainty.  That  it  notifies  the 
opposite  party  sufficiently  of  the  nature  of  the  claim  intended 
to  be  made,  and  that  to  uphold  such  objections  would  be  in 
effect  to  determine  that. technical  certainty  in  a  pleading  is  as 
necessary  now  as  it  was  before,  and  that  the  abolition  by  the 
Code  of  all  the  forms  of  pleading  which  had  previously  existed 
has  been  productive  of  no  other  result  than  to  leave  things 
precisely  where  they  were. 

As  my  brethren  are  agreed  upon  the  other  points  which  I 
ruled  at  the  trial,  it  is  simply  necessary,  those  points  having 
been  re-argued,  to  express  my  general  concurrence. 

INGRAHAM,  F.  J. — I  do  not  think  the  case  of  Shaw  v.  Tobias, 
(3  Comst.,  188),  renders  it  necessary  for  us  to  decide  that  the 
complaint  in  this  case  is  defective.  Although  the  declaration  in 
that  case  was  not  deficient  in  the  allegation  as  to  the  nature  of 
the  action,  and  therefore  not  open  to  the  same  objections  as 
made  in  this  case,  still  the  remark  of  the  chief  justice  may  be 
applied  to  this.  He  says  the  bond,  as  set  forth,  appears  to  be 
a  bond  within  the  statute  which  is  a  public  act  of  which  the 
court  should  take  notice.  (26  Wend.,  502.) 

In  Loomis  v.  Brown,  (16  Barb,,  325),  the  Supreme  Court 
held  that  in  an  action  on  a  bond  given  on  the  granting  of  an 
injunction,  it  is  sufficient  to  aver  that  an  injunction  was  granted 
in  a  suit,  by  a  justice  of  the  court.  The  judge  says,  "  the  com- 
plaint sets  forth  the  nature  of  the  suit,  so  far  as  to  say  that 
an  injunction  was  granted  in  it  by  a  justice  of  the  court,  that 
issues  were  joined  and  judgment  rendered."  This  is  a  sufficient 
statement.  The  judge  adds,  "if  it  were  not,  it  is  the  better 
opinion,  that  after  parties  have  obtained  an  injunction,  and 
stayed  their  adversaries'  proceedings,  and  the  latter  have  suf- 
fered damage  thereby,  it  is  too  late  for  the  plaintiff  in  the  first 
suit  to  set  up  for  a  defence  to  the  suit  on  the  injunction  bond 


NEW-YOKE.  335 


Slack  a.  Heath. 


a  want  of  jurisdiction  to  grant  the  injunction.  They  are 
estopped  from  raising  the  question." 

The  application  of  these  remarks  to  the  present  case  would 
sustain  the  complaint,  and  under  the  present  system  of  plead- 
ing, when  the  defect,  if  it  exists,  is  one  which  has  in  no  way 
misled  the  defendants,  they  should  not  be  allowed  to  take  the 
objection. 

Nor  do  I  think  it  necessary  to  aver  that  the  property  was 
returned.  The  giving  of  the  undertaking  deprived  the  plaintiff 
of  the  right  to  demand  the  property  from  the  coroner.  It  then 
became  immaterial  to  her  what  the  coroner  did  with  the  pro- 
perty, nor  was  she  bound  to  follow  it,  and  see  to  its  delivery 
by  the  coroner.  Her  remedy  against  the  property  ceased,  and 
she  was  left  to  the  undertaking  alone  for  redress.  After  the 
giving  of  the  undertaking,  the  coroner  held  the  property  for 
the  benefit  of  the  defendant  in  the  original  action.  The  plain- 
tiff could  no  longer  interfere  with  it,  and  the  failure  on  the 
part  of  the  coroner  to  perform  his  duty  does  not  deprive  the 
plaintiff  of  a  security  for  property  which  belonged  to  her,  and 
which  the  giving  of  the  undertaking  prevented  her  from  claim- 
ing from  the  coroner. 

In  other  respects,  I  agree  with  Judge  Woodruff.  T7nder 
the  views  I  have  expressed,  the  judgment  should  be  affirmed. 

WOODRUFF,  J. — This  action  is  prosecuted  by  the  plaintiff, 
upon  an  undertaking  signed  by  the  defendants,  which  purports 
to  have  been  given  to  the  plaintiff,  in  an  action  brought  by 
her  against  Thomas  Carnley,  sheriff,  &c.,  in  which  she  claimed 
the  delivery  to  herself  of  certain  personal  property,  and  in 
which  she  had  caused  the  same  to  be  taken  by  the  coroner. 
And  after  reciting  such  action,  and  the  taking  of  the  property 
by  the -coroner,  the  instrument  declares  that  for  procuring 
the  return  of  such  property  to  the  defendant  (Carnley),  and  in 
consideration  thereof,  the  defendants  herein  (Colton  &  Heath) 
undertake  and  become  bound  to  the  plaintiff  in  the  sum  of  one 
thousand  dollars,  for  the  delivery  of  the  said  property  to  the 
plaintiff,  if  such  delivery  shall  be  adjudged,  and  for  the  pay- 
ment to  her  of  such  sum  as  may  for  any  cause  be  recovered 
against  the  said  defendant  (Carnley)  in  that  action. 


336  ABBOTTS'  PRACTICE  REPORTS. 

Slack  o.  Heath. 

In  declaring  upon  this  undertaking,  the  plaintiff  avers  that 
she  commenced  an  action  in  the  Supreme  Court  against  Thomas 
Carnley,  and  that  in  the  course  of  such  action  such  proceed- 
ings were  afterwards  had  that  the  present  defendants  made 
and  delivered  to  her  a  certain  undertaking  in  writing,  "  where- 
of the  following  is  a  copy,"  setting  forth  a  copy  of  the  purport 
above  stated, 'and  making  profert  of  the  original,  and  then 
further  avers,  that  she  afterwards  recovered  in  the  said  Su- 
preme Court  judgment  in  said  action  against  the  said  Carnley 
for  ten  hundred  and  eleven  dollars  and  fifty-six  cents,  and  that 
the  defendants,  though  often  requested  so  to  do,  have  not  paid 
the  said  judgment  or  any  part  thereof,  but  the  same  remains 
wholly  due  and  unpaid. 

The  answer  consists  of  three  parts. 

First.  That  the  judgment  against  Carnley  is  good,  and  might 
be  collected  by  an  execution  against  him,  but  that  the  plaintiff, 
by  some  fraudulent  agreement  or  understanding  with  Carnley, 
is  by  this  action  endeavoring  to  collect  it  from  the  defendants 
as  his  sureties,  instead  of  collecting  it  from  him. 

Second,  That,  the  plaintiff  has  no  cause  of  action  against 
the  defendants,  until  an  execution  against  their  principal, 
(Carnley,)  has  been  issued  and  returned  ;  and  that  none  had 
been  issued. 

Third,  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

Upon  the  trial,  the  court  directed  the  jury  to  find  a 
verdict  for  the  plaintiff  upon  the  pleadings ;  neither  party 
producing  or  offering  any  evidence ;  and  upon  their  ver- 
dict for  the  sum  named  in  the  undertaking,  with  interest 
thereon  from  the  alleged  date  of  the  judgment  against  Carnley, 
the  court  at  special  term  ordered  judgment,  from  which  the 
defendants  have  appealed. 

As  no  fact  alleged  in  the  complaint  is  denied  by  the  answer, 
and  as  the  defendant  offered  no  proof  of  any  matter  alleged  in 
his  answer,  it  is  obvious  that  there  was  no  question  of  fact  to 
be  submitted  to  the  jury. 

It  is  equally  obvious,  that  if,  before  the  plaintiff  could  main- 
tain her  action  against  these  defendants,  she  was  bound  to 


NEW-YORK.  33T 


Slack  a.  Heath. 


issue  an  execution  against  Carnley,  she  should  have  averred 
the  issuing  of  such  execution  in  her  complaint. 

The  question  therefore  before  the  court,  and  the  only  ques- 
tion, was  whether  the  plaintiff's  complaint  contained  a  state- 
ment of  facts  sufficient  to  constitute  a  cause  of  action  against 
the  defendants. 

There  is  no  warrant  in  the  Code  for  inserting  in  the  answer, 
as  has  been  done  here,  the  claim  that  the  complaint  is  insuffi- 
cient; suck  a  claim  is  a  demurrer,  and  nothing  else,  and 
although  a  defendant  may  demur  to  one  or  more  of  several 
causes  of  action,  and  answer  the  residue,  (Code,  §  151).  he  may 
not  answer  and  demur  to  the  same,  or  to  the  whole  alleged 
causes  of  action. 

This  is  not  very  material  in  this  case,  since  it  was  competent 
for  the  defendant  to  insist  upon  this  objection  when  the  plain- 
tiff sought  a  judgment  upon  her  complaint ;  that  objection, 
whether  set  up  by  demurrer  or  not,  being  preserved  to  her 
by  the  provisions  of  the  1-ioth  section  of  the  Code. 

The  question  therefore  to  be  considered  on  this  appeal,  is 
whether  the  judge  was  warranted  in  charging  the  jury,  that 
upon  the  admitted  facts  stated  in  the  complaint,  and  without 
even  the  production  of  the  alleged  undertaking,  the  plaintiff 
was  entitled  to  recover. 

This  question  was  argued  by  counsel  for  both  of  the  parties 
upon  the  assumption  that  the  undertaking  must  be  sustained, 
if  at  all,  as  an  instrument  executed  in  pursuance  of  the  provi- 
sions of  an  express  statute,  and  not  as  an  agreement  volunta- 
rily entered  into  irrespective  of  the  statute,  upon  a  considera- 
tion moving  to  the  parties. 

And  it  seems  to  me  plain  that  unless  there  is  enough  in  this 
complaint  to  show  that  the  understanding  in  question  was 
given  and  received  under  the  provisions  of  section  211  of  the 
Code,  the  plaintiff  has  failed  to  show  a  cause  of  action. 
Viewed  as  a  mere  agreement,  there  is  no  consideration 
acknowledged,  and  there  is  no  reciprocal  agreement  made,  or 
duty  assumed  by  the  plaintiff.  She  does  not  in  consideration 
of  the  defendant's  undertaking,  agree  to  relinquish  her  claim 
to  the  property  taken,  or  consent  that  it  be  returned.  The 
consideration  does  not  purport  to  be  past  nor  present ;  but  is 

90 


338  ABBOTTS'  PRACTICE  REPORTS. 

Slack  a.  Heath. 

wholly  future,  executory  and  conditional.  It  is  for  procuring 
the  return  of  certain  property  to  Carnley,  which  he  desires  to 
have  returned  to  him,  and  in  consideration  thereof,  the  defend- 
ants undertake,  &c. 

Something  then  remained  to  be  done  which  was  not  yet 
done,  to  gratify  Carnley's  desire,  and  to  procure  that,  the 
defendants  became  bound.  As  no  consideration  advantageous 
to  the  defendants  appeared  in  the  instrument,  and  as  no  con- 
sideration or  prejudice  to  the  plaintiff  could  arise  until  or  unless 
the  property  was  returned  to  Carnley,  the  plaintiff  should  have 
averred  that  the  return  of  the  property  (for  the  procuring  of 
which  the  undertaking  was  given),  was  made ;  and  had  the 
plaintiff  so  averred,  the  complaint  would,  in  my  judgment, 
have  been  good,  even  if  no  statute  could  be  found  providing 
for  the  making  of  such  contracts.  As  for  example,  suppose 
the  defendant  in  an  action  of  replevin,  as  formerly  conducted, 
when  there  was  no  such  provision  to  enable  him  to  keep  the 
possession  of  the  property  replevied,  pendente  lite,  had  desired 
to  do  so,  and  to  that  end  had  procured  these  defendants  to  exe- 
cute a  similar  agreement  with  the  plaintiff,  whereupon  the 
property  was  by  his  consent,  returned  to  such  defendants.  I 
know  of  no  ground  upon  which,  upon  an  averment  that  the 
consideration  was  so  executed  by  the  plaintiff,  the  defendants 
could  have  denied  their  liability. 

In  the  absence  of  any  averment  that  the  property  was 
returned  to  the  defendant,  no  consideration,  either  of  benefit 
to  the  defendants  or  their  principal,  Carnley,  nor  of  prejudice 
to  the  plaintiff  in  any  wise  appears.  And  therefore,  if  the 
question  before  us  be  considered  irrespective  of  the  statute, 
(under  which  it  is  claimed  by  the  plaintiff  that  the  undertaking 
was  given),  the  plaintiff  does  not  show  by  his  complaint  that 
the  defendants  are  liable  to  him  upon  the  instrument.  Even 
if  it  could  be  properly  insisted  that  by  accepting  such  an 
instrument,  the  plaintiff  became  bound  to  permit  or  procure  a 
return  of  the  property,  the  case  would  be  no  stronger  than  one 
where  there  was  mutual  and  dependent  agreement  in  which, 
as  where  future  performance  by  the  plaintiff  is  the  considera- 
tion of  the  defendant's  agreement,  the  plaintiff  must  aver  per- 
formance on  his  part. 


NEW-YOKK.  339 


Slack  a.  Heath. 


But  the  plaintiff  insists  that  the  undertaking  is  a  statute 
security,  and  is  given  in  the  form  prescribed  by  the  statute, 
and  that  therefore  there  was  no  necessity  for  expressing  a  con- 
sideration. 

The  original  defendant,  Carnley,  in  an  action  in  which  his 
personal  property  was  taken  from  him,  upon  a  claim  pursu- 
ant to  chap.  2  of  title  7  of  the  Code,  (formerly  called  the  action 
of  replevin),  had  a  right  to  the  return  of  his  property  upon 
delivering  first  such  an  instrument  as  is  set  out  in  this  com- 
plaint, and  the  instrument  is  therefore  a  valid  obligation. 

In  this  I  think  he  is  correct.  Where  a  statute  prescribes  the 
giving  of  an  instrument,  and  its  purport,  it  is  consideration 
enough  that  it  is  given  pursuant  to  the  statute  and  has  its  sanc- 
tion. The  defendant  will  not  be  permitted  to  claim  that  he 
-complied  with  the  requirements  of  the  statute  without  effecting 
the  purpose  of  those  requirements.  To  satisfy  the  statute, 
is  consideration  enough  upon  which  to  rest  the  obligation 
assumed. 

Nor  is  the  objection  that  the  undertaking  should  have  been 
made  to  the  sheriff  instead  of  to  the  plaintiff,  well  founded.  It 
is  an  instrument  prescribed  in  a  statute  which  has  introduced 
great  changes  in  the  course  of  proceedings  upon  choses  in 
action,  a  statute  which  allows  the  party  in  interest  to  prosecute 
in  his  own  name,  when  he  is  the  sole  party  in  interest.  The 
instrument  is  taken  for  the  plaintiff's  benefit,  and  is  by  its 
express  terms  to  secure  the  payment  of  the  judgment  to  her. 
I  think  indeed  that  the  words  "  to  the  plaintiff,"  which  follow 
"  become  bound,"  might  have  been  omitted,  and  yet  the  instru- 
ment would  have  operated  in  her  favor  and  been  equally  valid 
by  force  of  the  statute,  and  of  her  interest  in  the  subject 
matter. 

It  may  even  be  that  without  those  words,  the  sheriff  might 
make  it  available  to  himself,  in  case  he  should  deliver  the  pro- 
perty to  the  defendant  before  his  sureties  have  justified,  and  he 
himself  were  held  by  the  plaintiff  responsible,  (§  212),  and  possi- 
bly the  legislature  intended  that  the  sheriff  might  take  an  under- 
taking which  should  operate  for  the  benefit  of  whom  it  might 
concern ;  but  if  this  be  not  so,  the  sheriff,  even  if  he  prepared 
.the  undertaking  so  as  to  confine  the  benefit  thereof  to  the 


340  ABBOTTS'  PEACTICE  REPORTS. 

• - 

Slack  a.  Heath. 

plaintiff  and  exclude  himself,  prejudiced  no  one  but  himself,, 
and  the  defendants  should  not  be  permitted  to  object  that  the 
indenture  is  given  in  form  to  the  person  for  whose  especial 
and  immediate  benefit  it  was  intended. 

JSTor  in  my  opinion  was  it  necessary  that  the  plaintiff  should 
aver  the  issuing  of  any  execution  against  the  former  defend- 
ant, Carnley.  The  undertaking  of  the  present  defendants  was 
original  and  absolute,  that  the  property  should  be  delivered,  if 
a  delivery  was  adjudged,  and  that  the  sum  which  the  plaintiff 
recovered,  should  be  paid  to  her.  There  is  no  qualification  or 
condition  in  this  respect.  They  did  not  agree  that  the  money 
could  be  collected,  but  that  it  should  be  paid.  The  plaintiff 
had  nothing  to  do  but  recover  the  judgment,  and  then  the  duty 
of  the  defendants  was  complete.  The  averment  that  the  judg- 
ment was  not  paid,  is  stating  a  clear  breach  of  the  under- 
taking. 

But  the  question  recurs,  does  it  appear  by  this  complaint, 
that  this  instrument  was  made  and  delivered  in  compliance 
with  the  statute,  so  that  its  force  and  validity  can  be  sup- 
ported by  it;  for  (as  above  suggested),  if  regarded  as  a  mere 
agreement  between  the  parties,  the  complaint  is  defective. 
And  upon  this  question  I  feel  constrained  to  say  that  the  com- 
plaint does  not  show  that  it  was  taken  in  pursuance  of  any 
statute,  nor  show  facts  from  which  we  can  say  that  it  was  so 
taken.  It  is  quite  true,  as  was  held  in  Shaw  v.  Tobias,  (3 
Comst.,  188),  that  in  declaring  upon  a  statutory  security,  it  is 
not  necessary  to  aver  in  terms  that  it  was  taken  or  given  pur- 
suant to  the  statute  ;  but  it  must  appear  that  the  facts  existed 
to  which  the  statute  applied — for  else  it  could  not  appear  that 
it  was  a  statutory  security,  and  such  is  the  whole  scope  of  the 
decision  referred  to. 

The  plaintiff  here  states,  and  only  states,  that  she  commenced 
an  action,  and  that  such  proceedings  were  had  therein,  that 
this  undertaking  was  made  and  delivered.  !Now  if  our  statute 
provided  that  in  all  actions,  such  an  instrument  might  be  given 
for  the  purposes  mentioned  therein,  this  might  be  sufficient. 
But  it  is  only  in  the  action  formerly  called  replevin,  that  the 
statute  recognizes  any  such  security,  and  I  know  not  how  to 
avoid  the  conclusion  that  if  the  plaintiff  wished  to  set  up  the 


NEW-YORK.  341 


Slack  a.  Heath. 


instrument  as  a  statutory  security,  he  should  have  averred  that 
it  was  made  and  delivered  in  such  an  action.  For  aught  that 
the  plaintiff  has  averred  in  the  complaint,  the  action  against 
Oarnley  may  have  been  for  goods  sold  and  delivered,  or  any 
-other  cause. 

It  is  true  that  the  recitals  in  the  undertaking  are  to  the 
effect  that  the  action  was  replevin,  and  the  averment  is  that 
the  defendant  made  and  delivered  an  instrument  containing 
those  recitals ;  but  this  is  no  averment  of  their  truth.  Had 
there  been  an  averment  that  such  was  the  cause  of  action,  these 
recitals  would  have  been  evidence  that  such  averment  was  true. 
They  may  be  very  valuable  as  admissions  to  bind  the  defend- 
ants ;  but  until  the  plaintiff  has  made .  some  averment  to  be 
supported  by  them,  they  are  of  no  avail  to  him.  In  short,  while 
they  are  a  proper  if  not  a  necessary  part  of  the  instrument 
required  by  the  Code,  and  might  very  properly  be  set  forth 
in  the  complaint,  they  are  evidence  of  facts,  and  not  averments. 

The  case  of  Shaw  v.  Tobias,  above  referred  to,  is  cited  to  us 
as  showing  that  recitals  in  the  instrument  may  be  taken  in  the 
place  of  averments. 

That  case  warrants  no  such  conclusion.  There  the  plaintiff 
had  declared  upon  a  replevin  bond,  without  averring  in  terms 
that  it  was  taken  pursuant  to  the  statute.  The  court  held  that 
such  an  averment  was  not  necessary.  The  form  of  the  bond 
in  that  case,  was  such  as  the  statute  prescribed,  and  so  is  the 
undertaking  in  the  present.  But  there  the  plaintiff  had  averred 
the  replevin,  and  that  the  bond  was  given  for  the  prosecution 
of  the  replevin  suit,  that  on  the  giving  of  the  bond,  the  reple- 
vin suit  was  commenced,  that  the  goods  were  taken  in  pursu- 
ance of  the  writ  issued  for  that  purpose,  and  all  the  facts 
which  were  necessary  to  show  that  a  bond  in  that  form  was 
given  in  a  case  within  the  statute.  The  court  therefore  knew 
judicially  that  the  bond  was  taken  pursuant  to  the  statute  as 
well  as  with  it.  Here  we  know  judicially  that  the  undertak- 
ing is  in  a  form'  prescribed  by  the  statute  ;  but  whether  it  was 
made  and  delivered  in  a  case  within  the  statute,  we  are  not 
informed,  and  cannot  know  without  an  averment.  There,  as 
said  in  the  opinion  of  the  court,  the  bond,  as  set  forth,  appeared 
to  be  a  bond  within  the  statute,  which  is  a  public  act  of  which 


342  ABBOTTS'  PKACTICE  REPORTS. 

Slack  a.  Heath. 

the  courts  should  take  notice.  That  is  to  say,  the  bond  wa& 
set  forth  by  averring  its  making  and  delivery  in  a  form  pre- 
scribed by  statute  in  an  action  and  for  a  purpose  within  the 
provisions  of  the  statute.  So  that  every  fact  showing  that  it 
was  a  statutory  bond  was  alleged,  and  the  court,  (bound  to 
take  notice  of  the  statute  as  a  public  act),  could  therefore  judi- 
cially declare  it  to  be  such  a  bond.  But  the  court  could  not 
judicially  know  from  the  form  of  the  bond  alone,  that  it  was 
given  in  a  replevin  suit,  however  they  might  know  that  it  was 
in  a  form  appropriate  to  such  an  action. 

In  the  case  of  Loomis  v.  Brown,  (16  Barb.  S.  C.  Rep.,  325), 
the  court  sustained  a  declaration  upon  a  bond  given  on  the 
granting  of  an  injunction.  But  there  the  declaration  averred 
the  existence  of  the  circumstances  which  made  the  giving  and 
taking  of  such  a  bond,  proper,  to  wit :  the  commencement  of  a 
suit  in  which  an  injunction  was  granted  by  a  justice  of  the 
court,  and  in  which  issues  were  joined  and  judgment  rendered.. 
The  complaint  there  did  set  forth  just  what  the  pleader 
here  has  omitted,  viz  :  the  nature  of  the  suit,  so  far  as  to  say 
that  an  injunction  was  granted  in  it.  Had  the  pleader  here 
set  forth  the  nature  of  the  action  so  far  as  to  show  that  per- 
sonal property  had  been  replevined  or  taken  therein,  the  cases 
might  be  deemed  parallel. 

In  Ring  v.  Gribbs,  (26  Wend.,  502),  the  complaint  also  averred 
the  pendency  of  proceedings  in  which  such  a  bond  as  was 
declared  upon  was  appropriate,  and  therefore  does  not  con- 
flict with  these  views ;  and  although  other  defects  were  urged 
by  the  defendant's  counsel,  the  court  felt  at  liberty  to  intend 
after  verdict,  that  the  proper  proof  was  given  supplying  the 
defects.  Here  we  are  considering  the  question  whether  the 
plaintiff  could  recover  upon  these  pleadings  without  any  proof 
whatever — for  such  was  the  charge  of  the  court. 

In  Gould  v.  Warren,  (3  Wend.,  54),  the  court  say  of  an 
action  on  the  replevin  bond,  "the  declaration  should  set  out 
concisely  all  the  proceedings  in  the  replevin  suit."  And  such 
were  the  forms  of  pleading  on  such  bonds  heretofore.  (Se& 
Chit.  PI..,  212—216,  and  3  id.,  244).  And  so  also  is  the  form 
given  in  3  jBurrill,  cited  by  the  plaintiff's  counsel. 

It  is  true  that  much  of  the  minute  particularity  and  detail 


NEW-YORK.  343 


Slack  a.  Heath. 


found  in  Chitty,  may  now  be  dispensed  with ;  but  I  find  no 
warrant  for  saying  tbat  it  need  not  be  averred  that  the  bond 
was  taken  in  or  for  the  prosecution  of  an  action  of  replevin. 
(Phillips  v.  Price,  3  M.  (&  £,  180,  and  note  to  1  Bos.  &  Pul., 
381.) 

I  regret  the  conclusion  to  which  I  must  arrive  ;  but  if  the 
plaintiff  relies  upon  his  undertaking  as  a  statutory  security,  I 
think  he  is  bound  to  make  such  averm'ents  as  show  that  it  is 
not  only  such  in  form,  but  that  the  case  in  which  it  was  given, 
was  within  the  statute.  I  apprehend  that  a  declaration  on  a 
bail  bond  which  did  not  aver  the  issuing  of  the  capias  and  the 
arrest,  or  a  declaration  on  a  bond  for  the  jail  liberties  which 
did  not  aver  the  imprisonment,  could  not  be  sustained;  and  yet 
the  recitals  in  such  bonds  disclose  these  facts. 

The  defect  in  the  present  complaint  could  easily  have  been 
supplied  by  amendment,  and  I  cannot  doubt  that  the  court 
would  have  allowed  such  amendment  at  the  trial.  Indeed  if 
section  176  of  the  Code  could  be  so  construed  as  to  embrace 
such  a  case,  I  should  be  disposed  to  disregard  the  defect  on 
this  appeal.  It  is  quite  probable  that  the  defendants  would 
suffer  no  injustice.  The  admitted  fact  that  the  undertaking 
was  executed  by  the  defendants,  is  ample  assurance  that  in  truth 
the  action  was  within  the  statute.  But  the  court  are  only 
directed  to  disregard  a  defect  "  which  shall  not  affect  the  sub- 
stantial rights  of  the  adverse  party."  And  to  say  that  we  may 
affirm  a  judgment  where  it  does  not  appear  by  the  com- 
plaint that  a  cause  of  action  exists,  because  we  are  satisfied 
that  a  cause  of  action  does  in  fact  exist,  as  matter  of  evidence, 
would  I  think,  be  pushing  the  construction  of  that  section  too 
far.  The  defendant  has  urged  this  very  objection,  and  relied 
thereon  from  the  outset,  setting  it  up  in  his  answer.  I  do  not 
think  we  can  now  sustain  his  objection  as  well  taken,  and  still 
disregard  it.  It  is  urged  with  some  plausibility  that  an  aver- 
ment that  the  personal  property  mentioned  in  the  undertaking, 
was  returned  to  the  former  defendant,  Carnley,  is  also  neces- 
sary. That  even  regarding  the  instrument  as  a  statutory  secu- 
rity, it  is  necessary  to  show  that  it  was  acted  upon.  That  the 
object  for  which  it  was  given,  was  accomplished,  and  that  the 
consideration  (purely  executory  when  the  instrument  was  made 
and  delivered),  was  performed.  That  it  would  never  have 


344  ABBOTTS'  PRACTICE  REPORTS. 


The  Mayor,  <fcc.  of  the  city  of  New  York  a.  Mason. 


been  deemed  sufficient  in  an  action  on  the  replevin  bond,  to 
state  the  purpose  and  object  for  which  it  was  given,  and  its 
execution  in  proper  form,  without  averring  also  the  replevin  by 
the  sheriff.  It  should  however  be  observed  that  a  replevin 
bond  was  in  the  nature  of  an  indemnity,  and  if  there  was  no 
replevin,  there  could  be  no  loss.  "While  it  is  probably  true 
here  that  even  if  the  property  were  not  returned  to  the  former 
defendant,  Carnley,  the  plaintiff  lost  by  reason  of  the  under- 
taking the  right  to  compel  the  officer  to  deliver  the  property 
to  him,  and  yet  on  the  other  hand,  although  it  is  argued  that 
upon  the  delivery  of  this  undertaking,  Carnley  could  have 
compelled  the  return  of  the  property  to  himself,  still  these 
defendants  could  not.  It  is  however  unnecessary  to  express  an 
opinion  upon  this  question. 

The  various  objections  made  to  the  failure  of  the  plaintiff  to 
aver  and  prove  the  regularity  of  the  proceedings  in  the  suit 
against  Carnley,  seem  to  me  unfounded.  See  Gould  v.  Warner, 
and  Shaw  v.  Tobias,  supra. 

But  for  the  reason  above  stated,  I  think  the  judgment  must 
be  reversed,  and  a  new  trial  ordered — costs  to  abide  the  event. 
It  is  nevertheless  a  proper  case  for  amendment,  and  the  plain- 
tiff should  be  permitted  to  amend  his  complaint  in  the  par- 
ticulars above  referred  to,  if  he  desire  to  do  so,  before  proceed- 
ing to  such  new  trial. 


THE  MAYOR,  &c.  OF  THE  CITY  OF  NEW  YORK  a.  MASON. 

New  York  Common  Pleas  ;  General  Term,  March,  1855. 

DISTRICT  COURTS. — PLEADINGS  AND  PRACTICE. — LICENSES. 

A  justice  of  a  district  court  has  no  authority  to  entertain  a  motion  to  strike  out  a 
complaint  or  answer,  either  in  whole  or  in  part. 

The  fact  that  the  commissioners  of  excise  for  a  particular  ward  or  district  refuse  to 
license  any  persons  to  sell  spirituous  liquors,  does  not  justify  any  person  in  sell- 
ing them  without  a  license. 

Although. a  non-suit  applied  for  on  account  of  a  defect  in  proof,  might  properly  have 
been  granted,  yet  if  either  party  in  the  course  of  the  trial  supplies  the  proof  which 
was  before  wanting,  the  objection  is  obviated. 

In  a  suit  for  the  statute  penalty  for  selling  spirituous  liquors  without  a  license,  the 
burden  of  proof  is  on  the  defendant  to  show  that  he  had  a  license. 


NEW-YORK.  345 


The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 


If  a  complaint  in  a  justice's  or  district  court,  is  not  sufficiently  certain  and  explicit, 
the  defendant's  only  remedy  is  by  demurrer. 

The  proper  practice  in  the  district  courts  of  the  city  of  New  York  in  respect  to  sum- 
moning, impanneling  and  challenging  jurors,  defined. 

Appeal  from  a  judgment  of  the  District  Court  for  the  third 
judicial  district  of  the  city  of  New  York. 

This  was  an  action  to  recover  the  statute  penalty  for  selling 
liquor  without  a  license,  alleged  to  have  been  incurred  by  the 
defendant. 

The  defendant  by  answer  averred  that  he  kept  a  public 
victualing  house,  in  the  ninth  ward ;  that  he  was  a  citizen  of 
good  moral  character,  and  that  the  commissioners  of  excise  for 
the  ninth  ward,  had  refused  to  discharge  the  duty  of  granting 
licenses,  had  made  public  announcement  that  they  would  grant 
none,  and  had  refused  to  grant  an  application  for  license  made 
by  defendant,  &c.  &c.  The  plaintiff's  counsel  moved  to  strike 
out  these  allegations  from  the  answer,  and  the  motion  was 
granted. 

The  cause  then  came  on  to  be  tried,  and  resulted  in  verdict 
and  judgment  for  the  plaintiff;  from  which  defendant 
appealed.  The  important  grounds  of  appeal  appear  in  the 
opinion. 

A.  D.  Russell^  for  appellant. 
J.  B.  Haskins,  for  respondents. 

WOODRUFF,  J. — The  present  is  an  action  brought  to  recover 
the  penalty  given  by  statute  for  the  sale,  by  retail,  of  spiritu- 
ous liquors,  to  be  drunk  in  the  house  of  the  defendant,  he  not 
being  licensed  according  to  law.  (Sess.  Laws,  1824,  ch.  215, 
p.  256  ;  amended,  see  Sess.  Laws,  1827,  ch.  280,  p.  307). 

Numerous  objections  to  the  rulings  of  the  court  below,  were 
raised  on  the  trial,  and  also  to  the  testimony  received  in  evi- 
dence, and  no  less  than  twenty  errors  are  alleged  in  the  notice 
of  appeal,  as  grounds  of  reversal.  But  the  defendant's  counsel, 
on  the  argument  of  the  appeal,  urges  very  few  of  these  objec- 
tions ;  and  as  to  those  which  the  counsel  appear  to  have  aban- 
doned, it  will  suffice  to  say  that  we  think  no  error  was  com- 


346  ABBOTTS'  PKACTICE  REPORTS. 

The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 

mitted  in  those  particulars,  which  warrants  a  reversal  of  the 
judgment. 

I.  It  is  however,  proper  that  we  should  say,  that  in  our  opinion, 
the  justice  had  no  authority  to  strike  out  one  of  the  defences 
set  up  by  the  defendant  in  his  answer  on  motion.  The  plead- 
ings in  the  district  courts  are  governed  by  section  64  of  the 
Code  of  Procedure  ;  and  a  demurrer  is  the  only  proper  mode 
of  raising  an  objection  to  a  defence  as  insufficient.  Upon  such 
a  demurrer  the  court  may  order  an  amendment ;  and  if  the 
party  neglects  or  refuses  to  make  such  amendment  as  will  ren- 
der the  pleadings  sufficient,  the  defective  pleading  may  be 
disregarded  on  the  trial.  (Sub.  6  and  7).  But  the  justice  has 
no  authority  to  entertain  a  motion  to  strike  out  a  complaint  or 
answer,  either  in  whole  or  in  part.  No  such  authority  is 
expressly  given  to  him,  and  he  can  take  no  such  power  by 
implication.  And  it  is  manifest  that  the  exercise  of  such  a 
power  is  inconsistent  with  the  provisions  of  the  subdivisions  of 
the  64rth  section  above  referred  to'.  By  those  provisions,  it  is 
made  his  duty  to  require  an  amendment,  when  he  is  of  opinion 
that  the  objection  to  the  sufficiency  of  the  complaint  or  answer 
is  well  founded  ;  and  yet,  by  granting  a  motion  to  strike  out, 
he  violates  this  distinct  provision. 

If  it  be  said  that  he  may,  after  striking  out  a  defence,  suffer 
the  party  to  amend,  the  answer  is,  that  this  is  not  in  accord- 
ance with  the  course  of  proceeding  prescribed  for  justices* 
courts. 

But  it  does  not  follow  that  in  this  particular  case,  the  judg- 
ment should  be  reversed  upon  that  ground.  If  it  appear  that 
the  matter  set  up  as  one  of  the  defences,  and  so  struck  out,  con- 
stituted no  defence  at  all,  and  was  so  radically  insufficient  that 
no  amendment  could  have  made  it  a  good  defence,  then, 
although  we  deny  the  power  of  the  justice  to  grant  the  motion, 
and  disapprove  of  his  order  striking  out  the  so  called  defence, 
we  may  and  ought  to  say  that  no  injustice  Was  done;  the  erro- 
neous order  did  not  and  could  not  legally  affect  the  result,  and 
furnishes  no  ground  for  a  reversal  of  the  judgment. 

In  this  we  by  no  means  design  to  sanction  the  practice ;  on 
the  contrary,  we  regard  such  a  departure  from  the  prescribed 
course  of  proceeding  in  those  courts,  as  so  far  erroneous, 


NEW-YORK.  347 


The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 


that  we  hesitate,  in  overlooking  the  error,  and  we  think  that  it 
must  be  very  clear  that  no  injustice  has  been  sustained  in  conse- 
quence, or  we  must  reverse  the  judgment. 

Another  reason,  however,  exists  in  the  present  case  for  dis- 
regarding the  error  in  question  :  all  the  matters  averred  in  that 
part  of  the  answer  which  was  struck  out,  were  given  in  evi- 
dence by  the  defendant,  and  became  the  subject  of  a  distinct 
ruling  upon  their  sufficiency  as  a  defence,  irrespective  of  the 
then  state  of  the  pleadings. 

II.  The  first  ground  now  urged  by  the  counsel  for  the  appel- 
lant, embraces  the  very  question  raised  by  the  defence  so  struck 
out,  and  in  respect  to  which  the  evidence  of  the  facts  was 
afterward  received,  viz :  The  appellant  was  the  keeper  of  an 
inn  or  tavern,  and  as  such  was  licensed  to  sell  spirituous 
liquors,  in  the  year  1853.  His  license  expired  on  the  first  of 
May,  1854.  He  then  applied  for  a  further  license,  which  he 
failed  to  obtain,  and  there  was  some  evidence  that  the  officers 
in  whom  the  power  to  grant  licenses  for  the  ward  or  district  in 
which  the  defendant  resided,  refused  to  grant  any  licenses 
whatever  in  their  ward. 

Assuming  these  facts,  it  is  argued  that  this  was  a  neglect  of 
diity  on  the  part  of  those  officers,  for  which  they  might  have 
been  indicted ;  and  that  such  neglect  of  duty  operated  as  a 
general  license  to  all  persons  whomsoever  residing  in  the  ward, 
to  keep  an  inn,  and  sell  such  liquors,  and  especially  all  per- 
sons, citizens  of  the  United  States,  possessing  a  good  moral 
character,  residing  in  such  ward;  and  even  if  it  did  not  oper- 
ate as  such  general  license,  the  defendant  having  been 
licensed  down  to  the  first  of  May,  was  relieved  from  the- 
necessity  of  procuring  a  further  license,  but  might  continue  to 
sell  notwithstanding  the  term  of  his  license  had  expired — the 
neglect  of  duty  by  the  officers  aforesaid  thus  operating  as  an 
extension  of  his  term. 

It  seems  to  me  that  the  mere  statement  of  these  propositions, 
shows  their  unsoundness.  They  seem  to  proceed  upon  a  theory 
that  the  defendant  and  the  commissioners  of  excise  stand  to 
each  other  in  the  relation  of  contracting  parties,  between  whom 
the  failure  of  performance  by  one,  relieves  the  other  from  the 
obligations  assumed  by  him  ;  that  the  commissioners  having 


348  ABBOTTS'  PRACTICE  REPORTS. 


The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 

refused  to  give  the  defendant  a  license,  have  no  right  to  com- 
plain that  he  has  no  license. 

The  effect  of  such  reasoning,  is  this :  Commissioners,  by- 
neglecting  their  duty,  .(if  a  refusal  to  license  the  defendants, 
was  a  neglect  of  duty),  may,  at  their  pleasure,  repeal  or  abro- 
gate a  law  of  the  State.  If  the  persons  who  in  any  district 
may  for  the  time  being  be  commissioners  of  excise,  should 
deem  it  expedient  to  license  everybody,  they  may  practically 
do  so  by  refusing  to  license  anybody.  Such  a  proposition 
hardly  needs  confutation. 

The  law  of  the  State  is  explicit  and  unqualified,  that  every 
person  who  shall  sell  by  retail,  &c.,  <fec.,  "  without  being 
licensed  according  to  law"  "shall  forfeit  and  pay,  &c."  Being 
licensed  "  according  to  law/'  means  licensed  in  the  manner 
prescribed  in  the  act.  Now  it  is  not  in  the  power  of  com- 
missioners of  the  excise,  or  of  any  other  subordinate  tribunal 
or  officers,  to  abrogate  the  statute.  Its  provisions  may  be  dis- 
regarded— the  commissioners  may  even  neglect  their  duties  ; 
but  the  statute  will  nevertheless  stand,  and  if  no  person  is 
licensed,  then  whoever  sells,  does  so  "  without  being  licensed," 
and  incurs  the  penalty,  and  it  seems  to  me  that  the  proposition 
that  when  no  one  is  licensed,  all  are  licensed,  is  too  novel  and 
extraordinary  to  call  for  discussion. 

So  in  regard  to  the  idea  that  the  defendant  "  held  over," 
under  his  former  license.  He  had  no  vested  right  to  sell 
spirituous  liquors.  The  statute  forbidding  a  sale  without 
license,  and  giving  to  the  excise  commissioners  authority  to 
license  such  persons  as  they  should  deem  fit  and  proper,  for- 
bids any  such  idea.  The  selection  of  the  persons  to  be  licensed, 
is  purely  a  matter  of  discretion.  If  in  one  year  they  thought 
it  fit  and  proper  to  license  the  defendant,  the  experience  of 
that  year  might  satisfy  them  that  they  erred  in  their  former 
judgment.  If  in  one  year  they  deemed  it  fit  and  proper  to 
license  twenty  persons  to  sell,  the  experience  of  that  year  might 
satisfy  them  that  they  had  erred,  and  that  the  wants  of  the 
public  would  only  require  that  ten  be  licensed  the  next  year. 
And  if  in  one  year  they  deemed  it  fit  and  proper  to  license 
persons  residing  in  a  particular  ward  or  district,  the  experience 
of  that  year  might  satisfy  them  that  the  interests  of  the  public 


NEW-YORK.  349 


The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 


would  be  better  subserved  by  having  no  inns  or  taverns  and 
retail  drinking-shops  within  that  district.  I  think  it  clear  that 
the  discretion  vested  in  the  commissioners,  and  exercised  by 
them  in  this  respect,  is  conclusive,  and  to  that  effect  is  exparte, 
(Parsons,  1  Hill,  655),  and  that  the  right  to  sell  spirituous 
liquors,  which  in  the  absence  of  any  statutory  provision,  might 
be  exercised  by  any  one,  has  now,  by  statute,  been  converted 
into  a  franchise,  and  can  be  exercised  only  by  those  who  have 
actually  obtained  a  license.  (See  the  Overseers  of  Crown 
Point  v.  Warren,  3  Hill,  150).  I  do  not  perceive  what  appli- 
cation the  argument  of  the  counsel,  that  the  refusal  of  the 
commissioners  to  grant  any  licenses  for  the  ninth  ward,  was  a 
breach  of  duty  for  which  they  might  be  indicted  as  for  a  mis- 
demeanor, has,  to  the  right  of  the  defendant  to  sell  without  any 
license.  This  proposition  was  also  embodied  in  a  request  that 
the  justice  below  would  so  charge  the  jury.  (See  Rex  v. 
Young,  1  Burr,  556).  I  do  not  deem  it  necessary  to  consider 
at  all  whether  the  proposition  is  correct  or  not ;  for  whether 
true  or  false,  the  sale  by  the  defendant  was  none  the  less  a 
sale,  without  being  licensed. 

If  the  commissioners  neglect  their  duty  and  incur  a  liability 
to  the  public  therefore,  it  will  not  avail  the  defendant.  Even 
if  their  refusal  to  grant  any  license  was  a  breach  of  duty  they 
owed  to  the  defendant  himself,  he  must  seek  his  redress  by  a 
proceeding  against  them,  and  not  by  a  violation  of  an  express 
law  of  the  State. 

The  argument  amounts  to  this :  by  refusing  to  give  me  a 
license,  the  commissioners  neglect  their  duty,  and  therefore 
impliedly  license  me  by  their  own  neglect.  In  other  words,  I 
have  a  right  to  sell  liquor  in  the  ninth  ward ;  if  the  commis- 
sioners grant  me  a  license,  then  I  am  authorized  to  sell  by 
virtue  thereof ;  if  they  refuse,  then  their  refusal  operates  as  a 
license,  and  I  am  authorized  to  sell,  because  they  so  refuse  ; 
so  that  with  license  or  without  license  my  authority  is  com- 
plete, and  whether  the  commissioners  grant  me  a  license  or  not 
is  immaterial.  I  am  not  able  to  appreciate  the  force  of  this 
sort  of  logic.  There  is  no  such  right  in  the  defendant  to  sell. 
The  commissioners  have  violated  no  duty  to  him,  and  no  court 


350  ABBOTTS'  PRACTICE  REPORTS. 

The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 

can  compel  them  to  grant  him  a  license,  (Exparte  Parsons,  1 
Hill,  635),  or  justify  him  in  selling  without  such  license. 

III.  It  is  further  argued  that  the  court  below  should  have 
granted  a  nonsuit,  when  moved  for  upon  the  ground  that  the 
plaintiffs  had  merely  proved  the  fact  that  the  defendant  had 
sold,  &c.,  without  having  also  shown  negatively  that  the  de- 
fendant had  no  license.     That  the  burden  of  proving  this  also 
was  upon  the  plaintiffs. 

If  there  was  any  foundation  for  this  argument  at  the  time 
the  motion  for  a  nonsuit  was  made,  it  is  now  too  late  to  urge 
it,  for  it  appeared  in  the  subsequent  steps  of  the  trial  from  the 
defendant's  own  witnesses,  that  he  had  no  license.  If  the  de- 
fendant wished  to  avail  himself  of  this  supposed  defect  in  the 
plaintiff's  proofs,  he  should  have  rested  upon  his  objection,  so 
far  at  least,  as  not  to  supply  the  defect  himself.  No  rule  is 
better  settled,  than  that  where  a  nonsuit  might  properly  have 
been  granted  for  such  a  defect,  if  either  party  in  the  course  of 
the  trial  supplies  the  proof  which  was  before  wanting,  the  ob- 
jection is  obviated. 

IV.  It  was  however  held  by  the  Supreme  Court,  in  Potter 
v.  Devoe,  (19  Wend.,  361),  where  this  precise  point  was  before 
the  court,  that  the  burden  of  showing  that  the  defendant  had 
no  license  was  not  on  the  plaintiff;  but  on  the  contrary,  that 
whether  the  defendant  had  a  license  or  not,  was  a  matter  pe- 
culiarly within  his  own  knowledge,,  and  the  burden  of  showing 
that  he  had  a  license  was  cast  upon  him  by  proof  of  the  fact 
of  a  sale  of  the  spirituous  liquors.     See  numerous  cases  there 
cited  to  support  the  principle. 

Y.  Another  ground  for  reversal  urged  by  the  counsel  for 
the  appellant,  is  that  the  complaint  did  not  specify  the  days 
upon  which  the  alleged  sales  were  made,  with  sufficient  pre- 
cision to  warrant  the  proof. 

"  The  statement  in  the  complaint  was  that  the  defendant,  on 
the  6th,  7th,  8th  and  9th  days,  and  on  each  and  every  of  said 
days,  did  sell,  by  retail,  strong  and  spirituous  liquors,  &c.,  to 
be  drunk  on  defendant's  premises,"  in  said  city,  &c. 

I  do  not  perceive  in  what  respect,  if  any,  the  complaint  is 
not  sufficiently  certain  and  explicit.  Had  the  plaintiffs  named 
each  day  in  any  other  language,  e.  g.,  on  Tuesday,  the  9th 


NEW-YORK.  351 


The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 


day  of  May ;  on  Wednesday,  the  10th  day  of  May ;  on 
Thursday,  the  llth  day  of  May  ;  and  so  on  down  to  the  sixth 
day  of  June,  the  complaint  would  have  been  no  more  defi- 
nite, explicit,  or  certain,  than  to  say  on  each  and  every  day 
for  thirty  days  previous  to  the  said  6th  day  of  June. 

Besides,  if  the  complaint  was  defective  in  this  respect,  it 
was  a  mere  defect  of  form,  only  available  under  the  general 
rules  of  pleading,  formerly  existing  by  a  special  demurrer, 
and  is  cured  by  verdict. 

And  still  further,  by  the  express  provisions  of  section  64 
of  the  Code,  subdivision  5,  pleadings  in  the  district  courts 
are  not  required  to  be  in  any  particular  form,  provided,  always, 
they  are  such  as  to  enable  a  person  of  common  understanding 
to  know  what  is  intended.  The  complaint  here  abundantly 
meets  that  requirement — and  by  subdivisions  6  and  7,  when 
a  complaint  is  not  sufficiently  explicit  to  enable  the  defendant 
to  understand  it,  he  may  demur — and  if  the  court  deem  the 
objection  well  founded,  it  shall  order  an  amendment.  This, 
then,  is  the  remedy,  if  the  complaint  be  defective  in  the  par- 
ticular under  consideration.  I  am,  therefore,  clearly  of  the 
opinion  that  the  objection  itself  was  groundless,  and  if  it  were 
otherwise,  the  defendant  cannot  now  avail  himself  of  the 
objection,  having  answered  to  the  writs  and  gone  to  trial 
without  pursuing  the  mode  pointed  out  by  the  statute  to  pro- 
cure an  amendment. 

VI.  A  further  ground  for  reversal  is,  that  the  jury,  by 
whom  the  cause  was  tried,  were  not  summoned  and  inipan- 
neled  according  to  law. 

The  return  states  that  the  justice  "  caused  a  venire  to  be 
issued,  in  the  manner  required  by  law,  to  summon  twelve  per- 
sons named  in  a  panel  annexed  thereto,  being  good  and  law- 
ful men  of  the  eighth  and  ninth  wards  of  the  city  of  New 
York,  qualified  to  serve  as  jurors,  to  appear,"  &c.  On  the 
appearance  of  the  jury,  the  return  states  that  the  defendant's 
counsel  challenged  the  array  on  the  ground  that  too  many  ju- 
rors had  been  summoned.  This  objection  being  overruled, 
and  six  jurors  being  drawn  to  serve  on  the  trial,  the  defend- 
ant's counsel  objected  to  going  to  trial  on  the  ground  that 
twelve  jurors  were  necessary  according  to  law  to  try  the  action. 


352  ABBOTTS'  PRACTICE  REPORTS. 


The  Mayor,  &c.  of  the  city  of  New  York  a.  Mason. 

It  is  impossible  to  say  which  of  these  two  objections  was 
deemed  by  the  counsel  to  be  well  founded,  for  obviously  both 
could  not  be.  If  twelve  jurors  were  necessary,  then  summon- 
ing twelve  was  not  summoning  too  many.  I  conclude,  how- 
ever, that  he  does  not  now  think  that  there  was  any  foundation 
for  either  objection,  since  on  the  argument  of  the  appeal,  he 
neither  argues  that  too  many  were  summoned,  nor  that  too 
few  were  impanneled.  The  act  relating  to  these  courts, 
passed  in  1813,  (2  Rev.  Laws,  1813,  p.  374)  section  95,  pre- 
scribes the  number  to  be  summoned,  and  fixes  it  at  twelve, 
and  the  same  section  fixes  six  as  the  number  who  shall  be 
impanueled  to  try  the  cause.  This  statute,  so  far  as  it  deter- 
mines the  number  of  jurors  to  be  summoned,  and  the  number 
to  be  drawn,  has  not  been  repealed  or  altered.  The  return 
states  that  the  defendant  further  objected  to  the  jury,  that  they 
were  not  selected  by  the  constable.  It  is  sufficient  to  say  of 
this  objection,  that  neither  the  statute  of  1813,  nor  any  other 
statute  requires  that  the  constable  shall  make  such  selection. 
The  act  of  1813  requires  that  the  justice  shall  nominate  in  a 
panel  the  names  of  eighteen  persons,  and  that  the  venire  shall 
direct  the  constable,  or  marshal,  to  summon  any  twelve  of 
these  persons  to  appear.  And  in  this  respect,  the  return  states 
that  the  venire  was  issued  in  the  manner  required  by  law,  and 
the  law  of  1847,  which  will  be  presently  considered,  in  no 
wise  imposes  upon  the  constable  the  duty  of  selecting  the  jury. 
But  this  objection  was  not  urged  upon  the  argument  of  the  ap- 
peal. It  does  not  appear  to  have  any  foundation.  And  even 
if  it  had,  it  would  avail  nothing,  according  to  the  views  ex- 
pressed regarding  the  remaining  objection,  which  was,  that  the 
justice  had  no  power  to  issue  a  venire  to  summon  a  jury.  The 
grounds  of  this  objection  do  not  appear  by  the  return,  but  it 
is  argued  by  counsel  upon  the  appeal  that  the  act  of  1847, 
(Laws  of  1847,  ch.  495,  p.  734),  has  altered  the  law  of  1813  in 
relation  to  the  mode  of  selecting  jurors  for  the  district  courts, 
and  that  jurors  in  those  courts,  as  well  as  the  other  courts  in 
this  city,  should,  on  requisition  by  the  court  directed  to  the 
county  clerk,  be  drawn  from  the  petit  jury  box  in  his  office, 
and  a  certificate  of  such  drawing  should  be  delivered  by  him 
to  the  officer  authorized  to  summon  jurors  for  those  courts. 


\ 


NEW-YORK.  353 


The  Mayor,  <fec.  of  the  city  of  New  York  a.  Mason. 


Had  this  objection  been  taken  by  the  defendant  in  his  chal- 
lenge to  the  array,  I  think  it  must  have  been  deemed  well 
taken.  The  statute  last  mentioned,  in  terms  requires  that  the 
jurors  hereafter  to  be  summoned  for  the  several  courts  author- 
ized to  try  issues  of  fact  in  the  city  of  New  York,  shall  be 
drawn,  upon  requisition  by  such  courts  respectively,  directed 
to  the  county  clerk. 

The  district  courts  fall  within  this  description,  and  all  laws 
conflicting  with  the  provisions  of  this  act  are  expressly  re- 
pealed. The  manner  of  nomination  and  selection  prescribed 
in  the  act  of  1813,  and  the  requirements  of  the  act  of  1820 
(Laws  of  1820,  ch.  1,  p.  3),  directing  that  the  jurors  for 
these  courts  shall  be  summoned  from  the  wards  composing- 
the  district,  are  therefore  repealed.  And  the  justice  there- 
fore had  no  authority  to  issue  a  venire  for  jurors  selected 
from  the  particular  wards  composing  his  district.  He  should 
have  made  a  requisition  upon  the  county  clerk  for  the  re- 
quisite number  of  jurors,  and  the  certificate  of  the  drawing 
by  such  clerk  delivered  to  the  constable  would  be  his  war- 
rant for  summoning  them  to  attend.  It  is  undoubtedly  true 
that  this  practice  will  be  found  in  some  respects  inconvenient, 
and  especially  when  the  jurors  drawn  reside  at  a  great  dis- 
tance from  the  place  of  trial,  but  since  it  cannot  be  denied 
that  those  courts  are  authorized  to  try  issues  of  fact,  they  must 
be  deemed  within  the  statute,  and  the  legislature,  and  not 
the  courts,  must  remedy  the  inconvenience,  if  any  be  found. 
That  portion  of  the  act  of  1813  which  limits  the  number  of 
jurors  to  be  ordered  to  eighteen,  and  the  number  to  be 
summoned  to  twelve,  and  the  number  to  be  empanneled  to 
six,  remains  unrepealed,  and  in  the  requisition  to  be  made 
upon  the  county  clerk,  that  act  is  doubtless  in  this  respect  to 
be  observed  in  each  case  in  which  a  jury  is  demanded.  But 
in  this  particular  case,  the  objection  cannot,  I  think,  avail  the 
defendant ;  the  irregularity  in  summoning  the  jury  was  ground 
of  challenge  to  the  array,  and  should  have  been  made  in  the 
first  instance.  No  such  ground  of  challenge  was  taken,  and 
after  the  jury  were  empanneled  and  sworn,  it  was  too  late. 
Courts  have  often  granted  new  trials,  even  after  verdict,  for 
similar  causes,  where  it  appeare'd  that  injustice  may  have  been 


354  ABBOTTS'  PRACTICE  REPORTS. 

Allen  a.  Smillie.  . 

done ;  but  when  the  contrary  was  apparent,  they  have  no  less 
often  refused.  In  the  present  case  no  conscientious  jury,  how- 
ever summoned,  could  have  rendered  any  verdict  more  favor- 
able to  the  defendant  than  was  rendered. 

Challenges  are  to  be  presented  to  the  court  in  their  proper 
order,  that  they  may  be  tried  and  disposed  of  in  due  succes- 
sion, and  so  that,  if  the  array  be  quashed,  another  jury  may 
be  summoned.  Challenge  to  the  array  is  first  in  order,  and, 
after  that  is  disposed  of,  then  the  party  may  present  his  chal- 
lenge to  the  polls,  and  an  objection  to  the  array,  if  not  made 
ground  of  challenge  before  the  jury  is  sworn,  is  waived,  and 
cannot  afterward  be  insisted  on  as  a  matter  of  strict  right ; 
though  in  courts  having  power  to  grant  new  trials  it  may  be 
considered,  and  will  be  allowed  to  prevail,  to  prevent  injustice. 

In  the  return,  the  swearing  of  the  jury  is  not  specifically 
mentioned,  but  it  is  apparent  from  the  language  of  the  return, 
not  only  that  the  array  was  not  challenged  for  this  cause,  but 
that  the  objection  was  not  made  until  after  the  jurors  were 
drawn  and  ready  for  the  trial.  If  in  this  particular  the  return 
is  defective,  the  appellant  should  have  caused  it  to  be  amended. 
I  am  aware  that  it  may  be  suggested  that  this  disposition  of 
the  question  requires  strictness  in  the  due  order  of  proceeding 
in  justice's  courts,  but  not  more  than  is  just.  Indeed,  I  do  not 
perceive  how,  after  the  jury  are  sworn,  such  an  objection  could 
be  sustained  without  involving  a  discontinuance.  After  that 
stage  in  the  trial,  I  very  much  doubt  the  power  of  the  justice 
to  discharge  the  jury  and  summon  another  for  such  a  reason. 

I  conclude,  therefore,  that  the  judgment  should  be  affirmed. 


ALLEN  a.  SMILLIE. 
New  York  Supreme  Court,  /Special  Term  •  March,  1855. 

The  old  form  of  entering  judgment  upon  bond  and  warrant  of  attorney  to  confess 

judgment,  by  declaration  for  the  penalty  of  the  bond,  cognovit,  and  judgment  for 

the  penalty,  is  unauthorized  under  the  Code. 
The  proper  practice  in  entering  judgment  under  the  Code,  upon  confession,  or  upon 

bond  and  warrant  of  attorney,  signed  before  July  1,  1848, — defined. 
It  seems,  that  in  entering  judgment  upon  a  bond  and  warrant  of  attorney  above  five 

years  old,  it  is  necessary  to  give  the  defendant  notice  of  motion  for  judgment. 

Motion  to  vacate  judgment. 


NEW-YOKE.  355 


Allen  a.  "Smillie. 


The  facts  upon  which  the  motion  was  founded,  appear  suffi- 
ciently in  the  opinion. 

MITCHELL,  J. — On  the  16th  of  November,  1843,  Smillie  exe- 
cuted his  bond  to  Allen,  in  the  penalty  of  $10,000,  conditioned 
for  the  payment  of  $3,000,  and  interest  on  demand ;  and  on  the 
same  day  also,  executed  a  warrant  of  attorney  to  an  attorney 
to  confess  judgment  for  him  on  that  bond.  On  the  13th 
November,  1854,  affidavits  were  made  by  the  subscribing  wit- 
ness to  these  instruments,  proving  them,  and  on  the  3d  of 
November,  the  plaintiff  made  affidavit  that  the  consideration 
for  the  warrant  of  attorney,  was  land  sold  by  him  to  one  Peter 
Law,  who  gave  to  him  a  bond  and  mortgage  for  the  payment 
of  part  of  the  purchase  money ;  that  Smillie  bought  subject  to 
that  mortgage  ;  that  the  plaintiff  commenced  a  foreclosure  of 
the  mortgage ;  and  that  the  bond  and  warrant  of  attorney 
were  given  in  settlement  of  a  balance  due  on  said  Ijond  and 
mortgage  j  that  the  $3000  and  interest,  from  16th  November, 
1843,  were  still  due,  and  no  part  of  it  paid ;  that  the  plaintiff 
had,  on  that  day  seen  and  conversed  with  the  defendant;  and 
that  he  was  alive  at  10  A.  M.  of  that  day. 

On  these  papers  the  plaintiff  made  an  ex  parte  application 
to  the  court,  without  any  notice  to  the  defendant,  and  obtained 
an  order  to  enter  up  judgment,  pursuant  to  the  direction  con- 
tained in  the  warrant  of  attorney,  for  the  sum  of  $3000,  and 
interest  from  16th  November,  1843.  The  plaintiff's  attorney 
also  made  affidavit  that  the  amount  of  the  indebtedness,  by  the 
condition  of  the  bond,  was  $5,309. 

The  plaintiff  on  these  papers  entered  up  judgment  on  16th 
November,  1854,  precisely  in  the  old  form  of  a  judgment  on  a 
bond  and  warrant  of  attorney  to  confess  judgment,  filing  a 
declaration  in  debt  for  $10,000,  a  covenant  signed  by  an 
attorney  admitting  that  the  defendant  owed  the  $10,000,  and 
a  judgment  for  the  plaintiff  to  recover  the  said  debt.  The 
judgment  was  signed  by  the  judge  on  the  22d  November. 

It  now  appears  that  the  bond  and  warrant  of  attorney  were 
not  given  on  settlement  of  a  balance  due  on  said  bond  and 
mortgage,  but  that  that  mortgage  was  reduced  to  $8000,  and  a- 
suit  for  foreclosure  of  a  subsequent  mortgage  by  defendant  came 


356  ABBOTTS'  PKACTICE  REPORTS. 

Allen  a.  Smillie. 

on  to  a  decree  and  sale,  and  that  the  plaintiff  bought  at  such  sale 
the  land  above  mentioned,  subject  to  the  $8,000  mortgage,  and  so 
satisfied  that  mortgage  ;  and  the  plaintiff  in  reply  to  the  moving 
papers,  makes  his  affidavit  that  according  to  his  recollection 
and  belief,  a  judgment  was  entered  in  his  favor  against  the 
defendant,  for  the  balance  due  to  him,  and  that  on  the 
16th  November,  1854,  this  was  arranged,  and  the  judgment 
against  the  defendant  released,  and  the  bond  and  warrant  of 
attorney  for  the  $3,000  and  interest,  given  by  the  defendant, 
and  that  the  $10,000  mortgage  was  never  foreclosed,  but  was 
merged  in  the  plaintiff's  purchase. 

It  appears  also  that  the  plaintiff  was  advised  by  his  counsel 
that  it  was  necessary  before  entering  judgment  on  the  warrant 
of  attorney,  to  show  that  the  defendant  was  alive ;  that  he 
called  to  ascertain  that  fact,  and  then,  instead  of  stating  his 
object  or  demanding  payment,  or  giving  any  notice  of  his 
intention,  he  told  the  defendant  that  happening,  in  passing, 
while  looking  for  another  person,  to  see  defendant's  name  on 
the  door,  he  had  looked  in  to  see  how  defendant  was ;  also, 
that  an  execution  was  issued  and  delivered  to  the  sheriff,  who 
never  called  on  the  defendant  with  it,  and  that  thereupon 
summary  proceedings  were  taken  against  the  defendant. 

The  plaintiff  argued  that  the  judgment  was  regular,  as  it 
conformed  to  provisions  of  the  Revised  Statutes,  and  that  those 
provisions  were  still  in  force. 

A  declaration  or  complaint,  plea  or  answer,  and  the  judg- 
ment thereon,  belong  to  the  class  of  pleadings  rather  than  of 
practice  ;  the  term  practice,  relates  principally  to  the  time  and 
manner  in  which  the  pleadings  and  process  are  to  be  served  or 
entered.  A  book  of  pleadings  is  complete  which  does  not  men- 
tion the  latter  subject,  and  a  book  of  practice  is  complete 
which  does  not  speak  of  the  form  in  which  a  pleading  or  judg- 
ment is  to  be  drawn.  The  Code  (§  140),  abolished  all  form 
of  pleading  heretofore  existing,  and  declared  that  thereafter 
the  forms  of  pleadings  in  civil  actions  in  courts  of  record,  and 
the  rules  by  which  the  sufficiency  of  the  pleadings  were  to  be' 
determined,  were  those  prescribed  by  that  act.  The  old  system 
of  pleading  was  therefore  repealed,  when  it  differed  from  the 
Code.  An  old  declaration  in  debt  for  the  penalty,  a  cognovit 


NEW- YOKE.  357 


Allen  a.  Smillie. 


for  that  debt  and  a  judgment  for  the  penalty  of  the  debt,  are 
now  all  unauthorized. 

It  was  said  that  section  469  saves  the  old  rules  and  practice 
of  the  court  where  consistent  with  the  act.  It  does  ;  but  the 
pleadings  are  neither  parts  of  the  rules  nor  of  the  practice. 

There  are  two  forms  of  judgment  allowed  under  the  Code ; 
one  when  the  action  is  by  summons,  and  the  other  when  it  is 
by  confession  without  action.  Sections  382, 383, 384,  apply  to  the 
last,  if  the  confession  is  made  since  the  Code  took  effect ;  but 
the  Codifiers  also  provided  for  the  present  case,  where  the 
bond  and  warrant  of  attorney  were  given  before  the  1st  of 
July,  1848,  when  the  Code  first  took  effect,  and  prescribed  the 
manner  in  which  judgment  should  be  entered  in  that  case : 
namely,  in  the  manner  provided  by  sections  382,  383,  384, 
upon  the  plaintiff's  filing  such  bond  and  warrant  of  attorney, 
and  the  statement  signed  and  verified  by  himself  in  the  form 
prescribed  by  section  382.  (Code,  §429).  They  have  thus 
expressly  provided  for  the  pleadings  and  the  manner  of  enter- 
ing judgment  in  this  case,  and  made  that  express  provision  the 
rule,  and  so  abolished  any  not  conformable  to  it. 

Those  sections  form  chapter  third  of  title  12,  and  the  first 
allows  a  judgment  by  confession  in  the  manner  prescribed  by 
that  chapter  ;  then  §  383  requires  a  statement  in  writing  to  be 
signed  by  the  defendant  and  verified  by  his  oath  : — 1st,  stating 
the  amount  for  which  judgment  may  be  entered,  and  author- 
izing the  entry  of  judgment  therefor.  2d,  stating  concisely 
the  facts  out  of  which  it  arose,  and  that  the  sum  confessed,  is 
justly  due  or  to  become  due.  Section  384  requires  this  state- 
ment to  be  filed  with  the  clerk  of  the  court,  whose  duty  it 
becomes  to  indorse  upon  it,  and  enter  in  the  judgment  book  a 
judgment  for  the  amount  confessed,  with  $5  costs  and  dis- 
bursements, and  it  declares  that  this  statement  and  affidavit, 
with  the  judgment  indorsed,  shall  thereupon  become  the  judg- 
ment roll,  and  execution  may  issue  thereon. 

Assuming  that  section  424  means  to  substitute  the  plaintiff 
in  place  of  the  defendant,  in  making  the  statement,  and  not  to 
require  his  statement  in  addition  to  that  of  the  defendant; 
there  could  not  well  be  conceived  a  greater  departure  from  the 
requirements  of  this  chapter  than  this  case  presents. 


358  ABBOTTS'  PRACTICE  REPORTS. 

Allen  a.  Smillie. 

This  chapter,  with  §  424,  abrogates  in  effect  the  old  declara- 
tion in  debt  for  a  penalty,  and  the  judgment  for  the  penalty,, 
and  the  power  of  any  attorney  to  appear  on  an  old  bond  and 
warrant  of  attorney  to  confess  suit  or  judgment.  It  substitutes 
as  the  judgment  roll  the  original  bond  and  warrant  of  attorney, 
and  the  statement  required  by  the  above  chapter,  and  the 
indorsement  by  the  clerk  upon  the  statement  of  a  judgment 
for  the  amount  confessed  with  costs  ;  and  that  amount  by  sub- 
divisions 1  and  2  of  section  383,  is  the  amount  "justly  due," 
not  the  penalty. 

The  statement  thus  required,  should  show  "  concisely  the  facts 
out  of  which  it  (the  amount  due),  arose."  This  requires  a  true 
statement  of  those  facts.  The  plaintiff's  statement  as  filed,, 
alleges  the  inducement  to  the  giving  of  the  warrant  of  attor- 
ney to  have  been,  a  suit  commenced  by  him  to  foreclose  a 
mortgage  of  $10,000,  and  a  settlement  of  the  amount  due  on 
that  mortgage.  His  own  allegation  now  is  that  this  was  a 
mistake  arising  from  his  haste,  and  that  that  mortgage  was 

*  merged  in  a  purchase  made  by  him,  and  that  the  indebtedness 
was  a  balance  on  another  mortgage  given  by  the  defendant. 
These   are    two   entirely  different  causes  of  action  ;  and  the 
statement  on  file  is  not  true,  and  so  does  not  comply  with  the 
Code,  and  cannot  sustain  the  judgment.     The  chapter  quoted, 
requires  the  judgment  to  be  for  the  amount  justly  due — this  is 
for  nearly  double  that  amount; — it  requires  the  judgment  to 
be  indorsed  on  the  statement  and  entered  in  the  judgment 
book ;  this  was  not  indorsed  on  the  statement,  and  it  does  not 

•  appear  that  any  entry  of  it  was  made  in  the  judgment  book. 
The  order  of  the  court  was  to  enter  judgment  for  the  $3,000  and 
interest ;  but  it  was  entered  for  the  penalty. 

An  omission  of  the  clerk  of  the  court,  or  a  slight  omission  of 
the  attorney,  when  the  proceedings  are  all  correct  in  other 
respects,  may  be  amended  nunc  pro  tune,  even  on  the  motion 
to  set  aside  the  proceedings.  (Wright  v.  Alden,  3  How.  Pr.  R.r 
213).  But  a  departure  in  many  material  respects  from  the 
requirements  of  a  statute,  not  by  the  clerk  of  the  court  only, 
but  by  the  party  and  his  attorney,  should  not  meet  with  the 
same  favor ;  especially  when  there  was  a  ready  opportunity  to 
give  notice  to  the  opposite  party  of  the  motion  for  judgment, 


NEW-YORK.  359 


Allen  a.  Smillie. 


and  that  was  designedly  avoided.  That  the  defendant  may 
dispose  of  his  property  if  notice  were  given  to  him,  is  no  rea- 
son for  a  different  rule.  If  the  defendant  would  honestly  pre- 
fer another  creditor,  and  the  law  allows  it,  the  court  should 
not,  by  aiding  an  irregular  course  on  the  part  of  the  plaintiff, 
defeat  this  right  of  the  defendant.  As  well  might  it  give  judg- 
ment in  the  first  instance  without  a  summons  being  issued, 
when  the  defendants  would  not  confess  judgment,  and  then 
*from  the  same  motive  let  a  summons  served  afterwards,  retros- 
pect so  as  to  save  the  judgment.  If  one  in  the  "race  of  dili- 
gence," as  it  is  sometimes  called,  in  his  haste,  stumbles  and 
falls,  so  that  another  who  observes  the  requirements  of  the 
law,  reaches  the  goal  before  him,  there  is  no  great  reason  for 
preferring  the  violator  of  the  law  to  the  one  who  reverently 
observes  it.  If  the  fear  was  that  the  defendant  would  fraudu- 
lently transfer  his  property,  the  law  affords  a  remedy  against 
such  an  act,  and  the  plaintiff  should  trust  in  it. 

The  judgment  was  irregular,  even  according  to  the  old  prac- 
tice; the  judgment  roll  was  signed  by  a  judge  of  the  court, 
and  not  by  the  clerk.  The  judiciary  act  required  all  records 
of  judgments  and  enrollments  of  decrees  to  be  signed  by  the 
clerk  of  the  court,  filing  the  same,  without  any  fee  or  charge 
therefor.  (Laws  of  1847,  p.  335,  ch.  280,  §  53;  and  see  Man- 
ning v.  Gregor,  Code  Rep.  JV.  S.,  43). 

The  question  was  argued  also,  whether  it  was  not  necessary 
to  give  the  defendant  notice  of  the  motion  to  enter  judgment 
when  the  warrant  of  attorney  was  over  10  years  old.  Justice 
Bronson  expressed  himself  inclined  to  the  opinion  that  it  was 
necessary  ;  (in  Manufacturers'  Bank  of  Philadelphia,  v.  St. 
John,  5  Hill,  499).  Graham,  in  his  Practice,  (p.  774),  is  of  the 
same  opinion  ;  under  our  present  system,  by  analogy,  notice 
should  be  necessary  even  when  the  bonds  and  warrants  are 
but  five  years  old.  A  judgment  is  of  much  higher  order  as  evi- 
dence of  debt,  than  a  bond  and  warrant  of  attorney,  and  by 
the  Code,  (§  284),  after  the  lapse  of  five  years  from  the  entry 
of  judgment,  an  execution  can  be  issued  only  by  leave  of  the 
court,  upon  motion  with  personal  notice  to  the  adverse  party, 
unless  he  be  absent,  &c.  This  is  on  the  principle  that  after 
five  years,  the  defendant  is  not  to  have  an  execution  issue 


360  ABBOTTS'  PRACTICE  REPORTS. 


Linn  a.  O'Hara. 


against  him,  without  an  opportunity  to  show  why  it  should  not 
issue  ;  and  if  applied  even  after  judgment  against  him,  much 
more  should  he  have  this  opportunity  when  no  judgment  is 
yet  obtained.  If  no  notice  be  required  in  these  cases,  before 
judgment  is  entered,  then  the  plaintiff  who  has  delayed  ten 
years  and  over  to  enter  judgment,  may  issue  execution  without 
notice,  when  one  who  had  obtained  the  record  evidence  of  his 
claim,  cannot  do  so.  Whatever  doubt  may  have  existed  as  to 
the  necessity  of  notice  before  entering  judgment  on  a  bond  and- 
warrant  of  attorney,  after  a  lapse  of  ten  years,  under  the  old 
system,  is  removed  by  this  provision.  (See  also  Currie  v. 
JSToyes,  1  Code  Rep.  N.  #.,  198). 

The  judgment,  with  all  subsequent  proceedings,  are  set  aside, 
with  $10  costs  of  motion. 


LINN  a.  O'HARA. 

New  York  Common  Pleas  /  General  Term,  March,  1855. 
LIEN  LAW. — RIGHTS  OF  SUB-CONTEACTORS. 

Where  a  contractor  with  the  owner,  for  the  performance  of  work,  &c.,  towards  the 
erection  of  a  building,  abandons  the  work  before  any  payments  become  due, 
and  wholly  fails  to  perform,  so  that  according  to  the  terms  of  the  contract,  the 
owner  is  not  liable,  the  laborers  and  sub-contractors  cannot,  by  filing  notices  with 
the  county  clerk,  acquire  liens  upon  the  building,  or  lot  of  ground,  and  compel 
the  owner  to  pay  them  for  the  work  and  labor  actually  performed  by  them. 

Nor  can  they  establish  such  lien  and  right  to  recover  from  the  owner  by  proof  that 
the  original  contractor  was  induced  to  enter  into  the  contract  by  the  owner's 
fraud  and  false  representations  regarding  the  subject  of  the  contract. 

.Even  if  it  be  conceded  that  the  original  contractor  in  such  case,  instead  of  suing 
for  the  deceit,  and  claiming  damages  therefor,  has  the  option  to  waive  the  tort 
and  sue  for  the  value  of  the  work  and  labor,  his  laborers  cannot  exercise  that 
option  for  him ;  they  cannot  waive  the  fraud  practiced  on  their  employer,  or  re- 
lieve the  owner  from  the  liability  for  damages  incurred  by  the  fraud. 

The  claim  of  the  laborers  and  sub-contractors  in  such  case,  is  not  within  the 
lien  law. 

Appeal  from  a  judgment  of  the  District  Court  for  the  sixth 
judicial  district  of  the  city  of  New  York. 

This  was  one  of  nine  suits,  in  which  mechanics'  liens  were 
claimed  by  the  different  plaintiffs,  against  the  defendant,  for 


NEW-YORK.  361 


Linn  a.  O'Hara. 


work  done,  &c.,  by  them,  in  pursuance  of  a  contract  with  one 
William  Henderson,  who  was  a  contractor  with  the  owner. 
By  stipulation,  the  appeals  in  the  other  suits  were  to  abide  the 
event  of  this. 

The  facts  involved,  appear  sufficiently  in  the  opinion. 

T.  J.  Glover,  for  appellant. 
J.  B.  Sheys,  for  respondent. 

WOODRUFF,  J. — The  proceeding  in  which  the  present  appeal 
is  prosecuted,  was  commenced  in  the  district  court  upon  an  al- 
leged lien,  under  the  law  known  as  the  mechanics'  lien  law, 

O  /  ' 

and  under  the  following  circumstances  : 

On  the  3d  day  of  July,  1854,  the  defendant,  being  an  owner 
of  a  lot  of  ground  in  Thirty-first  street,  in  this  city,  made  a 
written  agreement  with  one  William  Henderson,  by  which  the 
latter  agreed  to  blast  out  the  rock  and  clear  a  place  for  a  cel- 
lar, and  also  for  a  privy  and  sewer,  for  the  sum  of  one  hundred 
and  twenty  dollars,  the  same  to  be  completed  by  the  25th  day 
of  the  same  month — "no  payments  to  be  made  until  comple- 
ted, except  what  should  be  considered  uec'essary  by  loth 
parties." 

In  pursuance  of  this  agreement,  Henderson  began  the  work 
and  employed  the  plaintiff  as  a  laborer  therein.  After  the 
contractor  had  made  some  progress,  and  had  received  $35  on 
account,  he  quitted  the  work  ;  and  the  reason  therefor  alleged 
by  the  claimant  herein,  and  testified  to  by  the  contractor  on 
the  trial,  was  that  he  found  that  he  had  been  deceived  by  the 
defendant,  who  had,  prior  to  the  making  of  the  contract,  mis- 
represented to  him  the  condition  of  the  lot  of  ground,  and  the 
nature  of  the  excavation,  in  respect  to  the  quantity  of  rock 
which  the  lot  contained. 

Thereupon,  the  laborers  employed  by  the  contractor  filed 
notices  with  the  county  clerk  to  create  liens  for  the  amount  or 
value  of  their  labor ;  and  now  claim  to  recover  such  amount 
or  value  by  the  proceeding  instituted  in  the  court  below  ;  and 
judgment  being  rendered  against  the  owner,  he  prosecutes  his 
appeal  to  this  court. 

It  is  not  claimed  that  under  the  agreement  made  by  the 


362  ABBOTTS'  PKACTICE  REPORTS. 

Linn  a.  O'Hara. 

owner  with  the  contractor,  any  sum  whatever  is  payable  to  the 
latter.  The  work  specified  in  the  agreement  was  never  com- 
pleted, and  payment  therefore  has  never  become  due. 

The  right  of  the  claimant  to  maintain  this  proceeding  is 
alleged  upon  the  sole  ground  that,  the  owner  practiced  a  fraud 
upon  the  contractor  to  induce  him  to  enter  into  the  agreement. 
That  the  agreement  was  therefore  riot  binding  upon  the  latter, 
but  he  had  a  right  upon  discovery  of  the  fraud  to  refuse  to  go 
on  with  the  work,  and  to  sue  for  and  recover  for  the  value  of 
the  labor  actually  expended  upon  the  lot,  which  in  his  testi- 
mony he  states  was  worth  $200. 

How  far  the  proof  in  this  case  established  the  alleged  fraud, 
and  whether,  under  the  circumstances  proved,  the  fraud  was 
of  such  a  nature  as  justified  the  contractor's  failure  to  perform 
his  agreement, — and  whether  the  contractor  did  not  discover 
the  fraud,  if  any,  long  before  he  abandoned  the  work,  but 
nevertheless  affirmed  the  contract  by  continuing  his  labor  until 
the  time  for  the  completion  had  expired, — are  questions  which 
would  admit  of  some  discussion.  But  taking  the  case  as  fa- 
vorably to  the  claimant  as  it  can  be  stated,  and  admitting  all 
the  facts  to  be  as  alleged  by  him,  I  apprehend  that  this  pro- 
ceeding cannot  be  sustained. 

The  statute  authorizing  the  creation  of  liens  in  favor  of  me- 
chanics and  others,  and  the  foreclosure  thereof,  does  not  apply 
.  to  such  a  case.  (Laws  of  1851,  ch.  513,  953).  By  the  first 
section  of  that  act,  the  persons  who  may  require  a  lien  are  de- 
clared to  be  "  Any  person  who,  by  virtue  of  any  contract  with 
the  owner,  or  who  in  pursuance  of  an  agreement  with  any 
such  contractor,  shall  in  conformity  with  the  terms  of  such  con- 
tract^ performs  work  and  labor,  &c.,  in  building,  &c  ;" — and 
the  same  section  provides  that  the  owner  shall  not  be  obliged 
to  pay  in  consideration  of  all  the  liens  authorized,  any  greater 
sum  than  the  price  stipulated  to  be  paid  in  and  by  such  con- 
tracts. 

The  second  section  provides  that  a  person  performing  labor, 
&c.,  in  pursuance  of  a  written  contract,  shall  produce  it  or 
give  the  best  evidence  thereof  in  his  possession  ;  and  shall 
recover  no  more  than  the  price  stipulated  to  be  paid  to  him  in 
such  contract. 


NEW-YORK.  363 


Linn  a.  O'Hara. 


And  the  third  section,  that  a  'person  performing  labor,  &c., 
without  a  written  contract,  shall  produce  like  evidence  to  esta- 
blish the  value  thereof. 

In  the  case  before  us,  there  was  a  written  contract  between 
the  owner  (the  defendant)  and  his  contractor  for  the  work. 
That  contract  was  not  performed ; — no  moneys  have  ever  be- 
come due  thereon.  It  has  been  repeatedly  decided  that  if  no 
money  has  become  due  from  the  owner  to  the  contractor,  the 
owner  cannot  be  compelled  to  pay  anything  to  the  laborer  or 
sub-contractor.  It  is  therefore  plain  that  if  the  written  con- 
tract which  was  given  in  evidence  is  of  any  force  or  effect 
whatever,  the  claimant  was  not  entitled  to  recover. 

But  that  agreement  was  of  force  to  bring  the  parties  within 
the  express  terms  of  the  first  section  of  the  statute.  There 
was  an  agreement  with  the  owner,  in  pursuance  of  which  and 
in  conformity  with  the  terms  whereof,  the  work  was  begun 
and  prosecuted  so  far  as  it.  progressed  ;  and  that  was  the  con- 
tract, the  only  contract,  made  by  the  owner,  and  the  only 
contract  in  which  any  price  was  stipulated  to  be  paid  for  the 
work.  This  is  the  very  case  described  in  the  first  section  of 
the  statute,  and  yet  the  claimant  does  not  show  a  case  in  which 
by  reason  of  that  contract,  the  owner  can  be  required  to  pay 
anything  more  than  he  has  paid.  And  therefore,  regarding 
the  work  as  done  under  or  in  pursuance  of  a  contract  with  the 
owner,  the  claimant  cannot  recover. 

The  counsel  for  the  claimant  appears  conscious  of  this  diffi- 
culty, and  hence  he  places  his  ground  of  claim  upon  the 
alleged  fraud,  and  he  argues  that  by  reason  of  the  fraud,  the 
contract  is  a  nullity,  and  therefore  the  rights  of  all  the  parties 
are  the  same  as  if  there  had  been  no  contract  whatever  beyond 
a  mere  parol  employment  of  the  contractor  by  the  owner,  to 
excavate  for  just  so  long  a  time  as  the  contractor  did  devote 
to  the  work.  This  is  wholly  unwarranted.  So  far  as  the  rights 
of  the  parties  rest  in  express  contract,  the  employment  was  to- 
excavate  the  entire  cellar,  privy  and  sewer,  and  not  to  work 
thereat  by  the  day  or  for  any  number  of  days.  Setting  aside 
the  contract  as  fraudulently  obtained,  it  would  not  leave  the 
owner  and  contractor  under  any  contract  with  each  other  for 
the  doing  of  the  work. 


364  ABBOTTS'  PRACTICE  REPORTS. 

Linn  a.  O'Hara. 

But  it  is  insisted,  further,  that  the  contractor  had,  by  reason 
of  the  fraud,  a  right  to  repudiate  the  contract  altogether,  and 
then  sue  and  recover  for  the  value  of  the  labor,  &c.,  as  upon  a 
quantum  meruit.  I  do  not  think  it  necessary  to  express  an 
opinion  in  this  case  upon  the  question  whether  a  party  who  has 
been  induced  by  fraudulent  representations  to  enter  into  a 
contract,  can  recover  in  an  action  for  work  and  labor,  upon 
any  other  basis  than  that  furnished  by  the  terms  of  the  special 
contract.  It  has  been  held  in  England  that  he  cannot,  and 
that  if  he  sues  for  work  and  labor,  such  an  action  is  in  affirm- 
ance of  the  contract  itself,  and  must  be  governed  thereby. 
But  if  he  seeks  to  recover  upon  the  ground  of  fraud,  he  should 
repudiate  the  contract  when  the  fraud  is  discovered,  and 
sue  for  damages  for  deceit.  (Selway  v.  Fogg,  5  Mees.  & 
W.,  83). 

The  question  when  and  in  what  case  a  party  may  waive 
a  tort  and  bring  assumpsit  to  recover  the  value  of  whatever 
was  obtained  from  him  by  such  fraud,  has  been  much  dis- 
cussed, and  in  this  State  is  not  fully  settled. 

But  whatever  may  be  the  rights  of  the  contractor  in  this 
respect,  I  am  clear  that  his  laborers  and  sub-contractors  have 
no  right  to  repudiate  the  contract  between  him  and  the 
owner.  They  cannot  rescind  it,  and  even  if  the  contractor 
has  the  right  to  waive  his  claim  for  damages  for  the  fraud, 
and  sue  for  the  value  of  the  work  and  labor,  they  have  no 
power  to  exercise  that  option  in  his  behalf,  and  their  doing 
so  would  not  relieve  the  owner  from  the  contractor's  claim 
for  damages  for  fraud,  as  such.  The  liability  of  the  owner 
is  upon  the  express  contract  for  the  price  fixed,  or,  according 
to  the  agreement,  for  damages  for  the  fraud  •  which  latter  the 
contractor  may  waive  and  recover  the  value  of  the  work  and 
labor  done  and  performed.  If  this  latter  alternative  be  con- 
ceded, the  case  presented  does  not  come  within  the  letter  or 
the  spirit  of  the  lien  law.  That,  no  where  provides  that  where 
an  owner  fraudulently  procures  work  to  be  done,  by  reason 
whereof  he  becomes  liable  in  damages  for  the  fraud  thus 
practiced,  the  laborers  and  sub-contractors  of  the  individual 
defrauded  may  have  a  lien,  and  may  recover  to  the  extent  or 


NEW-YORK.  365 


Linn  a.  O'Hara. 


amount  of  the  damages  to  which  such  owner  would  be  liable, 
and  yet  this  is  the  argument  contended  for. 

So  if  it  be  conceded  that  the  contractor  may  elect  to  waive 
the  tort,  and  sue  for  the  value  of  the  work  done,  the  very  pro- 
position admits  also  that  he  may  not  make  such  election.  He 
may  sue  for  the  deceit,  and  non  constat  that  he  will  not.  His 
employees  cannot  make  that  election  for  him.  They  cannot 
say  there  was  no  contract  because  of  the  owner's  fraud,  and 
there  was  an  implied  contract  because  the  contractor,  the  only 
person  defrauded,  may,  if  he  pleases,  waive  the  fraud,  and  re- 
cover for  work  and  labor  as  such. 

I  cannot  resist  the  conclusion  that  this  proceeding  and  the 
judgment  therein  are  founded  in  error  regarding  the  applica- 
bility of  the  lien  law  to  such  a  case  as  the  present.  There  is 
no  especial  hardship  in  this — there  are  multitudes  of  cases  in 
which  money  is  due,  and  yet  in  which  the  legislature  have  not 
provided  any  special  and  extraordinary  means  of  compelling 
payment ;  and  the  plaintiff  is  in  no  worse  condition  than  the 
creditors  in  such  cases.  It  is  only  to  be  said  that  the  legislature 
have  not  given  to  the  laborer,  in  a  case  like  the  present,  a  right 
to  acquire  a  lien.  If  it  were  needful,  I  think  many  reasons 
could  be  given  why  it  would  be  unwise  to  do  so,  some  of 
which  might  well  be  illustrated  by  the  case  before  us ;  in 
which  a  contractor  having  failed  to  perform  his  contract,  be- 
comes in  substance  his  own  witness,  not  merely  to  excuse  his 
default,  but  to  prove  a  fraud  on  the  part  of  the  owner,  by 
which  he  compels  the  payment  of  much  more  than  the  whole 
contract  price,  for  the  benefit  of  himself.  But  it  is  unneces- 
sary to  pursue  that  branch  of  the  subject. 

There  are  other  grounds  assigned  for  a  reversal,  but  the  rea- 
sons above  given,  dispose  of  the  whole  case,  and  in  my  opinion 
call  for  a  reversal  of  the  judgment. 


366  ABBOTTS'  PKACTICE  KEPOKTS. 

Scherpf  a.  Szadeczky. 

SCHERPF  a.  SZADECZKY. 
New  York  Common  Pleas  ;  General  Term,  March,  1855. 

EVIDENCE. — PBOOF  OF  MARRIAGE. — EXAMINATION  OF  REPUTED 

WIFE. 

In  an  action  for  enticing  away  a  man's  wife,  actual  proof  of  the  marriage  is  not  neces- 
sary. Cohabitation,  reputation,  and  the  admission  of  the  parties,  is  sufficient. 

And  certainly  the  admission  of  the  defendant  that  the  plaintiff  and  his  alleged  wife 
were  married,  is  sufficient,  without  formal  proof  of  marriage. 

Where  the  marriage  is  denied,  and  the  plaintiff  has  given  sufficient  evidence  to 
establish  it  prima  facie,  the  defendant  cannot  examine  the  wife  to  disprove  the 
marriage. 

A  verdict  against  defendant  in  an  action  for  enticing  away  plaintiff's  wife,  will  not 
be  set  aside  as  excessive,  unless  facts  appear  which  show  that  the  jury  were 
actuated  by  improper  motives. 

And  the  court  will  not  infer  this,  merely  from  the  amount  of  the  damages  awarded. 

Appeal  from  an  order  denying  a  new  trial. 

This  was  an  action  for  enticing  away  the  plaintiff's  wife. 

The  answer  denied  the  enticing  charged,  and  also  averred 
on  information  and  belief,  that  the  plaintiff  and  Catharine 
Scherpf,  referred  to  in  the  complaint  as  his  wife,  were  never 
legally  married. 

In  the  course  of  the  trial,  before  "Woodruff,  J.,  May  9,  1851, 
evidence  was  put  in  by  plaintiff,  tending  to  show  that  the 
plaintiff  and  Catharine  Scherpf  had  for  several  years  lived 
together  as  man  and  wife,  were  reputed  to  be  such,  and  had 
frequently  admitted  that  they  stood  in  that  relation  to  each 
other.  It  was  also  in  evidence  that  the  defendant  had  often 
spoken  of  Catharine  Scherpf,  as  "  Mrs.  Scherpf,"  and  had  in 
conversation  distinctly  admitted  that  she  was  married  to  the 
plaintiff.  4 

The  defendant  moved  for  a  dismissal  of  the  complaint,  on 
the  ground  that  no  actual  marriage  bet\v  een  the  plaintiff  and 
his  alleged  wife,  had  been  proved.  The  motion  was  denied  by 
the  court,  and  defendant  excepted. 

The  defendant  afterwards  offered  to  prove  by  the  testimony 
of  Catharine  Coombs,  otherwise  called  Catharine  Scherpf,  the 


NEW-YORK.  367 


Scherpf  a.  Szadeczky. 


alleged  wife  of  plaintiff,  that  there  had  never  been  a  legal  mar- 
riage between  her  and  the  plaintiff.  To  this  the  plaintiff's 
counsel  objected,  on  the  ground  that  she  appeared  to  be  the 
wife  of  plaintiff,  and  could  not  be  called  to  testify  against  her 
husband. 

The  court  held  that  as  there  was  in  the  case  prima  facie  evi- 
dence of  a  marriage,  the  witness  could  not  be  examined;  and 
defendant's  counsel  excepted. 

The  jury  having  found  for  the  plaintiff,  damages  $10,000 — 
being  the  amount  claimed  in  the  complaint,  the  defendant 
moved  at  special  term  for  a  new  trial,  on  the  grounds  above 
stated,  and  also  on  the  ground  that  the  damages  awarded,  were 
excessive. 

The  motion  was  denied,  and  the  defendant  appealed  to  the 
general  term. 

So  m^h  of  the  opinion  of  the  court  at  special  term  as 
relates  to  the  questions  of  evidence  which  were  argued  upon 
the  appeal,  is  as  follows : — 

WOODRUFF,  J. — I  have  carefully  reconsidered  the  arguments 
presented  upon  the  motion  for  a  nonsuit,  urged  on  the  trial, 
upon  this  ground,  and  more  fully  discussed  upon  this  motion, 
and  I  still  entertain  the  views  expressed  on  the  trial. 

It  is  admitted  that  the  general  rule  on  this  subject  is,  that 
evidence  of  cohabitation,  reputation,  and  acknowledgment  by 
the  parties,  a  holding  of  themselves  out  to  the  world  as  hus- 
band and  wife,  is  a  sufficient  proof  of  the  fact  of  marriage. 

But  it  is  claimed,  that  as  this  rule  is  subject  to  exceptions, 
viz :  that  on  an  indictment  for  bigamy,  the  alleged  first  mar- 
riage must  be  established  by  proof  of  actual  marriage,  and 
that  in  actions  for  crim.  con.,  the  same  proof  is  necessary,  so, 
upon  similar  principles,  the  same  proof  should  be  required  in 
this  case.  The  exceptions  to  the  general  rule  have  heretofore 
been  said  to  be  confined  to  the  two  cases  above  mentioned  ; 
but  the  Supreme  Court  in  Clayton  v.  Wardell,  (5  Barb.  214), 
held  that  upon  an  issue  as  to  the  legitimacy  of  a  child,  when 
the  actual  marriage  of  its  parents  was  proved,  nothing  less  than 
evidence  of  a  prior  actual  marriage  of  the  father  should  be 
Dermitted  to  establish  the  illegality  of  the  second. 


368  ABBOTTS'  PKACTICE  REPORTS. 

Scherpf  a.  Szadeczky. 

• 

I  fully  appreciate  the  propriety  of  requiring  on  the  trial  of 
an  individual  for  an  alleged  crime,  the  highest  evidence  which 
the  nature  of  the  case  will  permit.  Not  only  the  presumptions 
in  favor  of  a  man's  innocence,  but  the  cautious  jealousy  with 
which  the  law  protects  the  liberty  of  the  citizen,  may  well 
forbid  a  conviction  of  a  crime  upon  mere  presumptions  from 
circumstances,  which,  though  true,  are  not  inconsistent  with 
innocence  of  the  offence  charged,  when  higher  evidence  may 
presumptively  be  given.  And  it  may  be,  that  the  charge  upon 
which  it  is  sought  to  bastardize  the  issue  of  an  actual  marriage, 
ought  to  rest  upon  the  same  evidence ;  not  only  because  the 
charge  imputes  to  the  father  the  crime  of  bigamy,  but  also 
because  the  consequences  of  sustaining  this  charge  are  of  so 
grave  a  character,  affecting  the  issue,  and  more  serious  than 
the  loss  of  property,  that  such  presumptions  ought  not  to  be 
entertained.  At  all  events,  I  do  not  deem  it  necessa^f  for  the 
purposes  of  this  case,  to  question,  the  correctness  of  the  deci- 
sion of  the  Supreme  Court. 

But  I  am  not  aware  that  in  any  case  in  which  the  action 
proceeds  merely  upon  the  ground  of  making  compensation  for 
an  injury  either  to  a  wife,  or  to  a  husband  through  the  wife, 
or  for  the  loss  of  a  wife's  services,  any  such  exception  was  ever 
made ;  nor  do  I  perceive  the  propriety  of  such  an  exception. 
The  trial  does  not  peril  the  liberty  or  the  life  of  the  defendant. 
It  puts  at  hazard  no  question  so  serious  as  legitimacy,  affecting 
not  merely  the  inheritance,  but  the  position  in  society  of  the 
issue  for  life,  and  it  may  also  be,  prejudicing  their  issue  after 
them. 

But  it  was  ingeniously  argued  that  the  present  action 
imputes  crime  as  truly  as  an  indictment  for  bigamy,  since 
enticing  away  a  man's  wife,  was  punishable  by  fine  and  impris- 
onment so  early  as  3d  Edward  I. ;  and  that  therefore  the  pre- 
sumption of  innocence  should  prevail  over,  or  at  least  should 
countervail,  a  presumption  of  marriage,  founded  on  circumstan- 
ces only ;  and  counsel  urge  that  the  rule  in  actions  of  crim.  con., 
by  which  proof  of  actual  marriage  is  required,  supports  this  view. 

I  apprehend  that  this- is  an  erroneous  view  of  the  rule.  It 
is  not  true  that  when  the  facts  necessary  to  support  the  civil 
action,  are  of  a  criminal  nature,  that  the  exception  arises;  nor 


NEW-YORK.  369 


Scherpf  a.  Szadeczky. 


is  the  exception  placed  upon  any  such  grounds.  If  it  were, 
then  in  an  action  by  the  husband  for  the  loss  of  service,  by 
reason  of  an  assault  and  battery  of  the  wife,  or  in  trespass  by 
husband  and  wife  for  the  personal  injury  of  the  wife,  and 
especially  if  the  assault  were  with  intent  to  kill,  the  same 
necessity  of  proving  actual  marriage,  would  exist ;  for  in  each 
of  these  cases  the  plaintiff,  to  sustain  the  action,  proves  in  fact 
the  commission  of  an  offence  which  may  be  the  subject  of 
indictment  and  punishment  by  fine  and  imprisonment. 

The  ground  of  the  exception  where  it  arises,  is,  that  the 
action  itself  if  penal : — e.  g.,  in  indictments  for  bigamy  ;  the 
proceeding  involves  the  liberty  of  the  subject, — the  object  is 
punishment — and  no  one  shall  be  subjected  to  punishment,  but 
upon  the  best  evidence  the  nature  of  the  case  will  allow. 

The  exception  in  actions  of  Grim,  con.,  did  not,  I  think,  ori- 
ginate in  the  idea  that  the  presumption  of  innocence  is  at  least 
equal  to  a  presumption  founded  in  any  circumstances  short  of 
actual  marriage,  but  upon  the  very  distinction  which  I  have 
suggested. 

The  first  reported  case  in  which  the  exception  in  such  an 
action  was  recognized,  so  far  as  I  have  been  able  to  discover, 
was  Morris  v.  Miller,  (4  Burr,  2057),  and  that  case  has  been 
ever  since  followed.  In  that  case,  Lord  Mansfield  does  not 
place  the  rule  that  an  actual  marriage  must  be  proved,  on  the 
ground  that  the  faote  alleged  impute  crime,  but  upon  the  dis- 
tinct ground  that  "  this  is  a  sort  of  criminal  action  /  "  that, 
"  there  is  no  other  way  of  punishing  this  crime  at  the  common 
law." 

The  action  itself  is  therefore  peculiar,  and  the  exception  is 
stated  in  that  case,  to  apply  to  no  other  action  which  is  in 
form  civil.  And  in  Birt  v.  Barlow,  (Douglas,  171),  Lord  Mans- 
field expressly  places  the  exception  upon  this  ground.  He 
says,  "  An  action  for  crim.  con.,  has  a  mixture  of  penal  prose- 
cution, and  such  an  action  is  the  only  civil  case  where  it  is 
necessary  to  prove  an  actual  marriage.'7 

I  might  suggest  reasons  of  public  policy — reasons  founded 
in  the  great  inconvenience,  and  oftentimes  the  impossibility 
of  furnishing  proof  of  actual  marriage  at  a  period  in  which 

migration  is  so  prominent  a  characteristic  of  the  age,  and 

24 


370  ABBOTTS'  PRACTICE  REPORTS. 

Scherpf  a.  Szadeczky. 

especially  in  a  State  where  the  law  recognizes  the  validity  of 
a  marriage  resting  in  contract  between  the  parties  unattended 
with  any  forms,  ceremonies,  or  solemnities,  and  where  regis- 
tration in  any  form  is  not  required,  which  to  my  mind,  forbid 
the  extension  of  the  rule  requiring  such  proof  to  new  cases, 
and  I  am  by  no  means  inclined  so  to  extend  it  in  favor  of  one 
who  voluntarily  invades  his  neighbor's  household,  to  seduce  an 
acknowledged  wife  from  her  allegiance,  and  by  such  extension, 
to  deliver  him  from  his  liability  to  make  the  husband  just  com- 
pensation. 

The  defendant  insists  that  the  judge  erred  on  the  trial,  in 
excluding  the  alleged  wife,  when  offered  by  the  defendant  as  a 
witness  to  prove  that  she  was  not  in  fact  the  wife  of  the 
plaintiff. 

The  rule  that  a  wife  is  not  competent  to  testify  against  her 
husband,  is  not  questioned ;  but  it  is  urged  that  when  the  ques- 
tion whether  the  proposed  witness  is  a  wife  or  not,  is  the  very 
question  upon  which  the  jury  are  to  pass,  she  is  competent.  In 
other  words,  that  the  court  cannot  say  she  is  the  wife,  and  so 
exclude  her ;  because  that  is  deciding  in  advance  the  very 
question  of  fact  which  should  be  left  to  the  jury. 

A  plausible  answer  to  the  defendant's  argument,  though  per- 
haps liable  to  similar,  yet  to  no  greater  criticism,  may  be 
stated  thus  : — If  the  proofs  without  her  testimony,  do  establish 
the  marriage,  then  the  jury  will  so  find,^,nd  the  witness  was 
in  fact,  incompetent.  But  if  the  plaintiff's  proofs  do-not  estab- 
lish the  marriage,  then  the  jury  will  so  find,  and  the  defendant 
must  have  a  verdict.  So  that  to  allow  her  to  testify,  is  to 
assume  that  no  marriage  is  proved,  and  if  that  be  assumed  by 
the  court,  then  the  plaintiff  should  be  nonsuited,  and  no  evi- 
dence from  the  defendant  was  necessary;  while  to  exclude  her 
testimony,  is  only  to  say  that  the  court  deem  a  marriage  is 
prima  facie  established.  If  the  jury  should  so  find,  then  the 
exclusion  is  clearly  proper ;  if  the  jury  do  not  so  find,  then  the 
exclusion  works  no  prejudice,  since  the  defendant  has  a 
verdict. 

The  true  ground  for  rejecting  her  testimony,  however,  is  not 
involved  in  either  of  these  syllogistic  processes  of  reasoning. 
These  counter  propositions  may,  however,  be  useful  to  a  true 


NEW-YOBK.  371 


Scherpf  a.  Szadeczky. 


understanding  of  the  rule.  They  both  proceed  upon  the  idea 
that  the  court  may  indulge  in  an  assumption  on  the  subject, 
although  the  assumption  that  she  is  a  wife,  would  perhaps  be 
shown  to  be  false,  if  the  witness  were  permitted  to  explain  her 
seeming  incompetency,  and  the  assumption  that  she  is  not  a 
wife,  might  be  shown  to  be  false  by  the  verdict. 

The  defendant  has  no  right  to  call  upon  the  court  to  receive 
an  offer  which  places  them  in  such  a  position,  or  exposes  their 
ruling  to  any  such  absurdity  in  its  results.  It  is  rather  to  be 
said  that  when  the  competency  of  the  witness  depends  upon 
the  very  fact  in  issue,  the  witness  is  never  competent.  That 
competency  is  in  doubt  by  the  very  state  of  the  case,  and  there 
is  no  mode  of  removing  the  doubt  but  by  the  verdict.  The 
embarrassment  or  hardship,  if  any,  results  from  the  very  nature 
of  the  case,  and  the  party  who  offers  the  witness,  must  bear  the 
consequences  of  a  difficulty  that  cannot  be  overcome. 

In  the  present  case,  the  plaintiff  had  shown  not  only  cohabi- 
tation, general  reputation,  the  holding  out  of  each  other  by 
the  parties  to  their  friends  and  neighbors  and  the  world,  as 
husband  and  wife,  the  adoption  by  the  alleged  wife  of  the 
husband's  name,  and  this  during  a  long  series  of  years,  but  had 
also  shown  repeated  admissions  by  the  defendant  himself  that 
they  were  husband  and  wife.  I  cannot  doubt  that  this  was 
sufficient  to  exclude  her  testimony. 

It  is  no  unusual  thing  that  the  court  are  required,  in  the  pro- 
gress of  a  trial,  in  ruling  upon  the  admissibility  of  evidence, 
to  infer,  and  say  that  facts  are  proved, — as,  for  example,  that 
a  witness  offered  is  interested,  or  that  a  paper  is  lost,  or  that 
the  execution  of  an  instrument  is  established, — and  yet  these 
inferences  may  and  often  do  involve  the  very  questions  upon 
which  the  jury  are  to  pass.  In  such  cases,  the  ruling  by  a  court 
is  in  a  sense  provisional  only ;  it  is  founded  upon  what  the 
Court  deem  prima  facie  proof.  It  is  the  defendant,  in  a  case 
like  the  present,  who  calls  upon  the  court  to  make  an  assump- 
tion, and  that  in  the  face  of  suck  prima  facie  proof.  He  offers 
the  witness. 

The  law  upon  the  proofs  already  given,  declares  the  alleged 
-wife  prima  facie  incompetent,  and  the  defendant  now  asks  the 
court  to  assume  that  she  is  not  the  wife,  and  so  to  receive  her. 


372  ABBOTTS'  PRACTICE  REPORTS. 

Scherpf  a.  Szadeczky. 

I  apprehend  lie  has  no  right,  as  a  matter  of  law,  to  require  the 
court  to  make  any  assumption  but  just  the  inference  from  the 
case  as  it  then  stands.  So  long  as  any  rules  touching  the  ad- 
missibility  of  evidence  exist,  they  can  only  be  administered 
by  requiring  the  court  to  pass  upon  just  such  questions  as 
these  without  any  merely  hypothetical  assumptions,  and  to 
dispose  of  them  upon  the  evidence  appearing  in  the  case,  at 
the  time  when  the  testimony  is  offered. 

The  cases  chiefly  relied  upon  by  the  defendant's  counsel  were 
settlement  cases,  in  which  the  alleged  husband  was  not  a  party 
to  the  suit,  nor  interested  in  the  event. 

There  are  some  cases  in  which  the  alleged  wife  was  deemed 
incompetent  to  testify  for  her  reputed  husband,  after  long; 
cohabitation  and  other  acts  creating  a  presumption  of  marriage, 
but  these  do  not  reach  the  present  question.  Nor  do  I  find 
any  case  which  conflicts  with  the  above  views,  except  that 
Peat's  case  (Lew.  Or.  Gas.,  288),  and  Wakefield's  case .(/&.,  279), 
are  said  to  sanction  an  examination  of  a  reputed  wife  on  her 
voir  dire,  to  prove  the  invalidity  of  the  marriage.  I  am  not 
able  to  perceive  the  propriety  of  such  an  examination,  when 
the  question  of  marriage  is  the  very  question  for  the  jury. 

The  argument  in  its  favor  amounts  to  this  :  if  she  will  swear 
she  is  not  the  plaintiff's  wife,  then  she  is  competent  to  do  so. 

This  is  simply  absurd,  for  she  is  offered  for  that  very  pur- 
pose ;  the  offer  of  her  testimony  assumes  that  she  will  give  it, 
if  permitted.  There  is  no  occasion  for  an  examination  on  her 
own  voir  dire  /  if,  when  sworn,  she  does  not  give  evidence 
that  she  is  not  married,  the  offer  and  the  evidence  amount  to 
nothing ;  and  to  say  that,  if  she  will  give  evidence  that  she  is 
not  married,  she  is  therefore  competent,  is  to  beg  the  whole 
question. 

I  am  still  of  opinion  that  the  ruling  on  the  trial  was  correct 
on  this  point. 

J.  Cochrane,  for  appellant.  I.  The  offence  of  persuading 
away  a  person's  wife  was  made  indictable  in  England,  by 
statute,  3  Edw.  2.  ch.  13.  (See  3  Black.  Comm.,  139).  The 
statute  law  of  England  became,  at  the  revolution,  our  law; 
(Const,  of  1777,  sec.  35,  Const.  0/1846,  art.  1,  sec.  17).  There- 


NEW-YOEK.  373 


Scherpf  a.  Szadeczky. 


fore  the  rule  which  prevails  in  indictments  for  bigamy,  &c., 
that  actual  marriage  should  be  proved,  applies  in  the  present 
case ;  the  reason  of  the  rule  being  that  proof  of  actual  mar- 
riage is  required  to  overcome  the  presumption  which  the  law 
makes  against  acts  of  a  criminal  nature.  (Clayton  v.  Waddell, 
5  Barb.,  214 ;  Commonwealth  v.  Littlejohn,  15  Mass.,  153). 

II.  The  court  erred  in  excluding  the  testimony  of  Catharine 
•Coombs.     The  evidence  of  marriage  between  the  witness  and 
the  plaintiff  was  merely  prima  facie.     She  was  the  best  wit- 
ness that  could  be  called  to  speak  directly  upon  the  subject. 
(1   Greenl.  Ev.,  §339;   Peat's   case,  2  Lew.   Or.   Cos.,  288; 
Wakefield's  case,  II.,  279  ;  Allen  v.  Hall,  2  Nott  &  Me.,  114; 
Stevens  v.  Mops,  Cowp.,  593 ;  King  v.  Bromley,  6  T.  E.,  330 ; 
Mace  v.  Cadell,  1  Cowp.,  232 ;  Poultney  v.  Fairhaven,  Brayt., 
185  ;  Commonwealth  v.  Littlejohn,  15  Mass.,  413  ;  Phil.  Ev., 
88  n.  163  and  192). 

III.  The  damages  are  so  extravagant,  as  to  indicate  that  the 
jury  must  have  been  actuated  by  passion,  partiality,  or  pre- 
judice. 

{?.  Schaffer,  for  respondent.  I.  No  actual  marriage  need 
IQG  proved.  (Taylor's  case,  9  Paige,  611 ;  Jackson  v.  Winne, 
7  Wend.,  47  ;  Morris  v.  Miller,  4  Burr.,  2057  and  I  Hill,  270  ; 
5  Johns.,  196 ;  3  Mass.,  317 ;  10  East.,  285 ;  4  Johns.,  53 ; 
and  see  Linden  v.  Linden,  published  in  the  New  York  Sun, 
27th  Jan.,  1851). 

II.  The  testimony  of  Catharine  Scherpf  was  properly  re- 
jected. (Babcock  v.  Booth,  2  Hill,  181 ;  People  v.  Carpenter, 
9  Barb.,  580 ;  1  Greenl.  Ev.,  409,  §  339  ;  2  Kent.  Comm.,  178). 

III.  The  damages  are  not  unreasonable. 

INGRAHAM,  J. — The  exceptions  taken  on  the  trial  of  this 
cause  to  the  rulings  as  to  the  admission  of  evidence,  have  been 
abandoned,  and  on  this  argument,  the  counsel  have  only  sub- 
mitted two  grounds  of  appeal  as  to  what  took  place  on  the  trial, 
and  an  objection  to  the  damages  awarded,  as  being  excessive. 

I.  The  first  point  is,  that  the  motion  to  dismiss  the  com- 
plaint should  have  been  granted.  This  was  upon  the  ground 
that  direct  proof  of  the  marriage  was  not  given  ;  and  that  the 


374  ABBOTTS'  PRACTICE  EEPORTS. 


Scherpf  a.  Szadeczky. 


act  for  which  the  defendant  was  sued  being  a  criminal  act, 
actual  marriage  must  be  proved. 

After  the  full  examination  paid  to  this  point  by  Judge- 
Woodruff,  I  deem  it  unnecessary  to  repeat  what  he  has  so 
well  said  in  regard  to  it,  but  only  necessary  to  add  our  con- 
currence with  him  in  the  opinion,  that  in  civil  actions  for  this 
cause,  actual  proof  of  the  marriage  is  unnecessary,  and  that 
the  same  may  be  proven  by  cohabitation,  reputation,  and  the 
acknowledgment  of  the  parties. 

In  addition,  however,  to  this  proof  in  this  case,  there  is 
the  clear  admission  proven  of  the  defendant,  made  in  the 
hearing  of  the  witness  Lekot,  that  the  defendant  spoke  of 
Mrs.  Scherpf  as  married,  that  she  was  married  to  Mr.  Scherpf, 
who  he  said  was  in  New  York.  Such  an  admission  of  mar- 
riage, in  any  other  than  a  criminal  prosecution,  has  been 
held  sufficient  evidence  of  marriage,  even  without  proof  or 
actual  marriage.  In  Rigg  v.  Curgenvew,  (2  Wils.,  395),  it 
was  said,  in  an  action  for  crim.  con.,  that  "  if  it  were  proven 
that  the  defendant  had  seriously  recognized  that  he  knew  the 
woman  was  the  plaintiff's  wife,  we  think  it  would  be  evidence 
proper  to  be  left  to  the  jury,  without  proving  the  marriage." 

And  this  has  been  held  expressly  to  be  sufficient  in  Forney 
v.  Hallacher,  (8  Serg.  &  R.,  159). 

I  think  there  can  be  no  doubt,  that  under  the  evidence  in 
this  case,  the  motion  to  dismiss  the  complaint  was  properly 
denied. 

II.  The  second  objection  is  that  the  wife,when  offered  as  a  wit- 
ness, was  improperly  excluded,  and  should  have  been  received. 

When  she  was  offered  as  a  witness,  the  proof  of  marriage 
had  been  sufficiently  established  to  go  to  the  jury  on  that  ques- 
tion. The  judge  so  held  on  the  trial,  by  refusing  the  motion 
to  dismiss  the  complaint,  and  we  think  his  ruling  was  proper. 
If  the  evidence  was  sufficient  for  that  purpose,  surely  in  the 
absence  of  all  proof  to  the  contrary,  the  proof  was  sufficient 
to  establish  the  marriage  so  far  as  to  render  the  wife  incom- 
petent. The  case  shows  that  the  person  called  as  Catharine 
Coombs  was  the  alleged  wife'of  the  plaintiff,  and  the  person . 
referred  to  by  the  witnesses  as  his  wife.  This  established  the 
identity  of  the  person  offered  as  a  witness,  with  the  person  to 


NEW-YORK.  375 


Scherpf  a.  Szadeczky. 


whom  the  witnesses  had  referred,  and  to  whom  the  defend- 
ant's admissions  related.  I  am  at  loss  to  see  upon  what  ground 
a  wife  can  ever  be  excluded  as  a  witness  for  or  against  her 
husband,  if  this  evidence  was  not  sufficient  proof  of  the  exist- 
ence of  that  relation  between  them,  for  that  purpose. 

It  is  said  that  she  should  be  admitted  where  it  is  to  prove 
the  invalidity  of  the  marriage,  or  in  other  words,  that  the  wife 
who  in  all  casesfis  prohibited  from  being  a  witness,  because 
the  law  preserves  inviolate  the  confidential  communications 
between  husband  and  wife,  is  to  be  admitted  as  a  witness  only 
in  one  case,  and  that  a  case  to  prove  the  adultery  of  the  hus- 
band and  her  own. 

We  have  been  referred  to  no  case  authorizing  the  admission 
of  the  wife  in  such  a  case  as  a  witness.  The  authorities  cited 
by  the  defendant  do  not  decide  any  such  point.  In  principle 
and  upon  authority,  as  far  as  any  can  be  found  applicable, 
the  rule  is  the  other  way.  Cases  may  be  found  where  a 
witness  was  not  admitted  to  prove  his  previous  marriage  with 
a  party  to  a  suit.  (Broughton  v.  Harper,  2  Ld.  Raym.  752). 
So  if  a  woman  sues  as  &feme  sole,  a  witness  cannot  be  called 
to  prove  that  she  was  his  wife.  (Bentley  v.  Cook,  cited  2 
T.  JR.,  265),  and  so  in  a  case  of  settlement,  where  a  marriage 
had  been  proven  between  two  paupers,  a  witness  to  prove 
his  former  marriage  with  them  was  properly  excluded.  (Rex 
v.  Cliviger,  2  T.  R.,  263). 

The  ruling  of  the  court  was,  I  think,  proper,  and  there  was 
no  ground  for  admitting  the  alleged  wife  as  a  witness. 

III.  The  remaining  objection  applies  to  the  amount  of 
damages.  It  is  alleged  they  are  excessive.  From  the  case  and 
all  the  evidence,  it  must  be  apparent  that  the  parties  are  not 
in  a  situation  warranting  such  a  heavy  verdict,  and  the  reco- 
very of  anything  will  probably  be  defeated  by  the  large 
amount  which  the  jury  have  given.  Still  the  cause  of  action 
is  one  in  which  it  is  difficult  to  fix  any  limit  to  the  amount, 
one  which  is  peculiarly  within  the  province  of  the  jury,  and 
the  mere  amount  of  the  damages  without  some  other  fact  to 
establish  it,  would  not  justify  us  in  saying  that  the  jury  were 
actuated  by  improper  motives  in  settling  it. 

The  judgment  should  be  affirmed. 


376  ABBOTTS'  PRACTICE  REPORTS. 

— * 

Landau  a.  Levy. 

LANDAU  a.  LEVY. 
New  York  Superior  Court ;  Special  Term,  April,  1855. 

JOINDER  OF  CAUSES  OF  ACTION. — CLAIMS  AGAINST  TRUSTEES. 

* 

It  is  essential  to  a  good  complaint,  containing  several  causes  of  action,  that  they 

should  all  belong  to  one  of  the  classes  mentioned  in  §  167  of  the  Code,  and  that 

they  should  be  separately  stated. 
The  allegations  of  the  count,  which  purports  to  set  out  any  one  causfe  of  action, 

should  state  enough  to  make  it  good  in  law. 
Causes  of  action  cannot  be  said  to  be  separately  stated,  when  it  is  necessary  to 

recur  to  the  allegations  of  the  count  which  sets  forth  one  of  them,  to  supply 

omissions  in  the  count,  containing  a  statement  of  the  other. 
Judgment  against  the  defendant  personally,  and  as  trustee,  cannot  be  sought  in 

the  same  action. 
It  seems,  that  in  an  action  on  a  bill  of  exchange,   payable  in  merchandize,    an 

assignment  for  consideration  by  the  payee  to  the  plaintiff,  should  be  averred. 

Demurrer  to  complaint. 

This  action  was  brought  by  Landau  against  Louis  S.  Levy, 
as  survivor  of  Mark  Levy  and  Louis'  S.  Levy,  partners,  and 
Louis  S.  Levy,  as  executor  of  Mark  Levy. 

The  action  was  upon  two  bills,  drawn  in  the  form  of  bills  of 
exchange,  payable  in  merchandize,  drawn  by  the  plaintiff  on 
Louis  S.  and  Mark  Levy,  as  partners,  and  accepted  by  them ; 
Mark  having  died,  and  Louis,  the  survivor,  having  been 
appointed  his  executor,  the  plaintiff  now  sought  in  this  action 
to  recover  judgment  against  the  latter,  both  as  surviving  debtor 
and  as  executor,  it  being  alleged  in  the  complaint  that  Louis 
was  insolvent. 

The  substance  of  the  allegations  of  the  complaint,  as  well  as 
the  objections  taken  to  it,  are  clearly  stated  in  the  opinion. 

Judah  and  Dickinson,  for  defendant. — In  this  complaint, 
two  causes  of  action  have  been  improperly  united,  inasmuch 
as  the  defendant  cannot  be  sued  individually  and  as  executor, 
in  the  same  action.  (Code,  §  144.  Suld.,  5  §  167.  Subdivi- 
sion, 7.  Alger  v.  Scoville,  6  How.  P.  E.,  131.  Fry  v.  Evans, 


NEW-YORK.  377 


Landau  a.  Levy. 


8  Wend.,  530.    Gillet  v.  Hutchinson,  24  ib.  184:.    Hancock  v. 
Haywood,  3  T.  £.,  433.     Slipper  v.  Stidstpne,  5  $.,  493). 

E.  R.  Lamoreux,  for  plaintiff. — Under  the  Code,  it  is  no 
misjoinder  of  parties  to  unite  the  surviving  partner  with  the 
representatives  of  the  deceased  partner,  in  an  action  on  a  con- 
tract made  by  the  copartnership  ;  especially  if  the  survivor  is 
insolvent.  (Code,  §§  117,  118.  Ricart  v,  Townsend,  6  How. 
Pr.  JR.,  460.  De  Agreda  v.  Mantel,  1  Abbotts'  Pr.  R.,  138. 
Laurence  v.  Trustees  of  Lake  &  Watts  Orphan  House,  2  Den., 
582.  Jenkins  v.  De  Groot,  1  Cai.  Gas.,  122.  1  Story's  Equity 
Jurisprudence,  §  676). 

Two  several  causes  of  action  have  not  been  improperly 
united,  (Code,  §  167).  They  all  arise  out  of  the  same  trans- 
action or  transactions,  connected  with  the  same  subject  of 
action,  and  fall  under  the  first  subdivision  of  section  167. 

BOSWOETH,  J. — It  is  essential  to  a  good  complaint,  containing 
several  causes  of  action,  that  all  of  them  should  belong  to  one 
of  the  classes  mentioned  in  §  167  of  the  Code,  and  that  they 
should  be  separately  stated. 

Each  cause  of  action  should  contain  in  the  allegations  which 
express  it,  enough  to  make  it  good  in  law. 

How  many  causes  of  action  does  this  complaint  contain? 

It  first  alleges  that  the  two  Levys  accepted  a  bill  drawn  on 
them  by  the  plaintiff ;  they  being  partners.  It  then  states  the 
death  of  Mark  Levy,  before  the  bill  matured,  nonpayment,  and 
payment  of  it  by  the  plaintiff  to  the  holder.  This  bill  was 
dated  the  26th  of  July,  1854,  was  for  payment  of  the  sum  of 
£599  13  2  sterling,  value  in  merchandize,  on  the  6th  of  Octo- 
ber then  next. 

The  complaint  then  proceeds  thus : — 

"  And  the  plaintiff  for  a  second  and  distinct  cause  of  action, 
further  shows,"  &c. 

It  states  the  acceptance  of  a  bill  dated  the  4th  of  August, 
1854,  drawn  by  plaintiff  on  the  same  parties,  requesting  them 
to  pay  on  the  4th  of  November,  1854,  the  sum  of  £397  12  4, 
sterling,  value  in  merchandize,  the  acceptance  of  the  bill,  the 


378  ABBOTTS'  PRACTICE  REPORTS. 

Landau  a.  Levy. 

death  of  Mark  Levy  before  its  maturity,  nonpayment  of  itr 
and  that  the  plaintiff  was  compelled  to  pay  and  take  it  up. 

This  would  seem,  to  make  a  full,  distinct,  second  cause  of 
action. 

The  complaint  without  stating  whether  it  was  designed  by 
it  to  set  forth  a  third  cause  of  action,  proceeds  to  allege,  the 
grant  to  Louis  S.  Levy  of  letters  testamentary  of  Mark  Levy, 
deceased,  and  that  Louis  S.  Levy  is  insolvent,  and  prays  judg- 
ment against  him,  "  absolutely,  and  as  such  executor"  for 
$4832^  and  costs,"  to  be  levied  and  collected  of  the  pro- 
perty of  the  said  Louis  S.  Levy,  as  such  surviving  partner  as 
aforesaid  or  otherwise,  or  in  default  thereof,  of  the  personal 
assets  of  Mark  Lery,  deceased,  which  have  or  shall  come  to 
the  hands  of  Louis  S.  Levy,  as  executor,  to  be  administered. 

It  will  be  observed  that  the  complaint  does  not  allege  that 
the  executor  has  in  his  hands  any  assets  of  the  deceased,  to  be 
administered,  and  that  the  judgment  prayed,  is  such  as  is 
entered  in  an  action  at  law,  against  an  executor  or  adminis- 
trator. 

If  it  can  be  said  that  the  complaint  contains  a  third  cause  of 
action,  it  must  be  on  the  theory  that  to  constitute  it,  the  whole- 
cow.plaint,  exclusive  of  the  prayer  for  judgment,  is  to  be 
regarded  as  being  the  third  count.  It  is  evident  that  each 
acceptance  is  designed  to  be  counted  on  as  a  separate  and  dis- 
tinct cause  of  action  against  Louis  S.  Levy,  as  survivor.  To 
make  a  cause  of  action  against  him,  as  executor*  out  of  any 
thing  in  this  complaint,  it  is  necessary  to  include  one  or  both 
of  the  two  causes  of  action  first  stated.  The  pleader  designed 
to  include  both ;  for  he  prays  judgment  for  the  amount  of  both 
acceptances. 

The  third  cause  of  action  is  not  separately  stated. 

If  the  third  count  is  to  be  regarded  as  an  action  at  law,  then 
whether  it  embrace  the  two  causes  of  action  first  above  stated, 
or  but  one  of  them,  it  is  bad  in  substance,  as  an  action  at  law, 
as  it  shows  a  surviving  partner  living.  If  the  third  count  be 
regarded  as  a  claim  to  equitable  relief,  it  does  not  allege  any 
assets  to  be  in  the  hands  of  the  executor,  and  therefore  fails  to 
show  any  reason  for  invoking  the  exercise  of  the  equitable 
powers  of  the  court. 


NEW-YOKK. 


Landau  a.  Levy. 


In  Marshall  v.  De  Groot,  (L  Cai.  Cos.,  122),  and  in  Laurence 
v.  Trustees  of  Lake  &  Watts  Orphan  Asylum,  (2  Den.  577), 
the  fact  of  the  insolvency  of  the  survivors,  and  that  the  repre- 
sentative of  the  deceased  partner  had  assets  to  be  administered, 
were  alleged.  If  the  third  cause  of  action  is  such  as  has  here- 
tofore been  denominated  legal,  it  is  bad  in  substance.  So- 
many  facts  are  stated  as  show  that  as  executor,  he  is  not  liable 
at  law.  (Grant  v.  Shurter,  1  Wend.  148). 

If  it  was  intended  to  state  a  cause  of  action,  which  would 
entitle  the  plaintiff  to  equitable  relief,  I  think  it  doubtful  at 
least,  whether  enough  is  stated  to  confer  jurisdiction.  It  is 
not  alleged  that  the  executor  has  any  assets  of  his  testator  to  be 
administered,  and  if  he  has  none,  a  court  of  equity  is  incompe- 
tent to  give  any  relief.  There  is  nothing  on  which  its  powers 
can  operate. 

But  if  enough  is  stated  to  give  jurisdiction  to  a  court  of 
equity,  can  such  a  course  of  action  be  joined  with  others 
against  the  defendant,  as  survivor? 

They  perhaps  all  arise  out  of  transactions  connected  with 
the  same  subject  of  action.  (Code,  §§  167,  §  1).  There  is  but 
one  defendant ; — in  one  sense — each  of  them  affects  him. 
But  two  of  them  affect  him  personally,  or  can  be  made  to 
affect  his  estate.  The  third  affects  only  the  estate  which  he- 
has  or  may  receive  as  executor  or  trustee  !  And  does  not  the 
word  trustee,  as  employed  in  subdivision  7,  of  section  167, 
embrace  executors  and  administrators,  as  well  as  those  who 
are  trustees,  eo  nomine?  If  it  does,  then  it  is  obvious  that  it 
was  not  intended  to  allow  causes  of  action  seeking  a  judgment 
against  a  defendant  in  personam,  to  be  united  with  others 
which  might  show  a  right  to  some  relief  against  the  defendant 
as  a  trustee,  though  the  latter  causes  of  action  may  be  in  some 
way  connected  with  the  same  subject  of  action  as  the  first. 

The  concluding  sentence  of  section  167  prohibits  joining 
causes  of  action  belonging  to  subdivision  one,  with  those  belong- 
ing to  subdivision  seven,  notwithstanding  they  may  be  con- 
nected with  the  same  subject  of  action.  I  think  the  plaintiff 
attempts  to  unite  causes  of  action  which  the  Code  does  not 
allow  to  be  united. 

It  is  doubtful  whether  either  count  is  good  in  substance.    It 


380  ABBOTTS'  PEACTICE  KEPOKTS. 

Landau  a.  Levy. 

is  not  very  evident  that  either  instrument  is  a  hill  of  exchange. 
Each  instrument  is  a  request  of  the  drawer,  directed  to  Louis 
S.  and  Mark  Levy,  in  their  partnership  name,  that  they  will 
pay  to  the  order  of  L.  C.  Oppermari,  at  a  time  named,  a  sum 
stated,  " in  merchandize"  The  acceptance  of  this  is  alleged, 
and  that  the  plaintiff  delivered  it  to  Opperman.  That  the 
plaintiff  was  forced  to  pay  Opperman  the  amount,  and  thus 
became  the  holder.  As  these  instruments  are  not  bills  of 
exchange,  for  the  reason  that  they  are  not  for  the  payment  of 
money  only,  they  are  not  negotiable  by  delivery  so  as  to  give 
a  right  of  action  to  the  holder.  There  is  no  allegation  that 
Opperman  sold  or  assigned  them  to  the  plaintiff.  Not  being 
bills  of  exchange,  it  may  not  be  clear,  that  to  enable  Opper- 
man to  maintain  an  action  against  the  acceptors,  it  would  not 
be  necessary  for  him  to  aver  a  consideration  sufficient  to 
uphold  the  contract.  (Smith  v.  Smith,  2  Johns.  J2.  235.  Sexton 
v.  Johnson,  10  ib.,  418).  No  consideration  for  the  defendant's 
acceptance  is  alleged.  The  instruments  as  described,  do  not 
import  that  there  was  any.  If  there  is  not  enough  stated  to 
show  a  good  cause  of  action  against  the  defendant  as  surviving 
acceptor,  nor  to  constitute  a  good  cause  of  action  at  law  against 
the  defendant,  as  executor,  nor  to  give  a  court  of  equity  juris- 
diction of  an  action  against  the  defendant,  as  executor  of  Mark 
Levy,  then  the  whole  complaint  is  bad  in  substance. 

Many  of  these  views  are  stated  rather  to  call  attention  to  the 
difficulties  suggested  by  them,  than  to  express  a  definite 
opinion  in  conformity  with  such  views. 

I  am  of  the  opinion  that  the  defendant  is  entitled  to  judg- 
ment on  the  ground  that  several  causes  of  action  have  been 
improperly  united.  But  the  plaintiff  may  amend  as  he  may 
be  advised,  in  twenty  days,  on  payment  of  the  costs  of  the 
demurrer. 


NEW-YOKE.  381 


Mechanics'  and  Traders'  Savings  Institution  a.  Roberts. 


MECHANICS'  AND  TRADERS'  SAVINGS  INSTITUTION  a. 

ROBERTS. 

Sv/preme  Court,  first  District  ;  Special  Term,  March^  1855. 

FORECLOSURE  SUIT.  —  RIGHTS  OF  INCUMBRANCERS  MADE 
DEFENDANTS. 

In  an  action  for  the  foreclosure  of  a  mortgage,  under  the  statute,  the  court  are  not 
authorized  to  make  a  decree  of  sale,  except  for  the  purpose  of  satisfying  the  mort- 
gage for  the  foreclosure  of  which  the  bill  is  filed,  and  the  costs  of  suit. 

A  sale  will  not  be  ordered  for  the  purpose  of  satisfying  a  junior  mortgage,  the  mort- 
gagee in  which  has  been  joined  as  defendant. 

The  affirmative  relief  which  the  court  is  authorized  by  section  274  of  the  Code,  to 
grant  to  a  defendant,  is  affirmative  relief  against  the  plaintiff  only  ;  not  against  a 
co-defendant. 

Motion  for  judgment  on  report  of  referee. 

This  was  an  action  brought  by  the  plaintiffs  to  foreclose  a 
mortgage,  made  by  Roberts.  The  Mechanics'  Banking  Asso- 
ciation had  been  made  defendants  —  they  claiming  to  hold 
another  mortgage,  made  by  Roberts.  By  the  referee's  report, 
it  appeared  that  there  was  a  sum  due  upon  the  mortgage  in 
suit,  to  the  plaintiffs,  and  also  another  to  the  Mechanics'  Bank- 
ing Association. 

The  latter  now  moved  for  judgment  and  sale,  and  satisfac- 
tion of  their  mortgage,  &c. 

MITCHELL,  J.  —  This  was  an  action  to  foreclose  a  mortgage  to 
the  plaintiffs.  The  plaintiffs  make  no  motion  ;  but  the  Mechan- 
ics' Banking  Association,  as  defendant  in  the  cause,  moves  for 
judgment  on  a  report  of  a  referee,  showing  that  a  certain 
amount  is  due  to  the  plaintiffs,  and  a  certain  other  amount  due  to 
the  bank.  There  is  nothing  to  show  the  order  of  priority  of 
the  mortgages,  or  that  the  bank's  mortgage  covers  the  same 
premises,  and  nothing  to  show  any  reason  why  the  bank  takes 
the  conduct  of  the  cause  from  the  plaintiff;  or  that  the  com- 
plaint or  summons  are  so  drawn  that  any  relief  can  be  given, 
except  "  the  relief  prayed  for  in  the  complaint." 


382  ABBOTTS'  PRACTICE  REPORTS. 

Mechanics'  and  Traders'  Savings  Institution  a.  Roberts. 

It  was  allowable  at  one  time  to  a  plaintiff,  to  set  out  the  rights 
of  all  the  incurabrancers  in  his  complaint,  and  then  for  the 
defendants  to  controvert  with  each  other  as  to  those  rights ; 
and  while  that  rule  prevailed,  Renwick  v.  Macomb  was 
decided.  (Ilopk.  177).  But  the  rule  was  found  productive  of 
delay,  and  rules  132  and  136,  of  Chancery,  established  a  dif- 
ferent practice.  The  chancellor  decided  nothing  contrary  to 
this  new  practice  in  Tower  v.  White.  (10  Paige,  395).  The 
defendants  then  were  allowed  to  set  up  in  their  answer,  matter 
in  contestation  of  the  plaintiff's,  (not  of  a  co-defendant's,)  rights, 
or  matter  necessary  to  show  how  the  sale  should  be  made,  viz  : 
in  parcels,  and  in  what  order.  An  incumbrancer  prior  to  the 
plaintiff,  may  set  up  his  mortgage,  and  the  sale  be  subject  to 
that  mortgage,  or  so  as  to  satisfy  it  as  well  as  the  prior  mort- 
gage, as  the  effect  is  the  same  in  both  cases.  But  the  Revised 
Statutes,  which  authorize  a  decree  for  the  sale  of  mortgaged 
premises  on  a  bill  "  filed  for  the  foreclosure  or  satisfaction  of 
a  mortgage,"  only  allow  the  sale  to  discharge  "  the  amount  due 
on  the  mortgage,  and  the  costs  of  suit."  (2  Rev.  Stats.  191, 
§  1 5).  "  The  mortgage,"  here  means  the  mortgage  for  the 
foreclosure  of  which  the  bill  is  filed,  and  none  other ;  and  so 
far  as  the  sale  is  concerned,  there  is  no  power  in  the  court  to 
go  beyond  that,  as  it  derives  its  power  to  sell  from  the  statute, 
and  not  from  its  general  powers. 

The  judgment  submitted,  proposes  a  sale  to  satisfy  the  bank's 
mortgage  only,  and  to  make  two  other  defendants  liable  for 
any  deficiency.  Nothing  in  the  complaint  or  summons,  can 
satisfy  them  that  any  such  claim  would  be  set  up,  and  the 
complaint  does  not  ask  any  such  relief.  It  also  shows  that  the 
defendant's  mortgage  is  subsequent  to  the  plaintiff's. 

Section  274  of  the  Code  is  referred  to  as  justifying  this  bold 
departure  from  long  established  practice.  That  section  allows 
to  a  defendant  affirmative  relief;  but  is  not  that  as  against  the 
plaintiff  only  ?  For  it  makes  no  provision  for  co-defendants 
to  set  up  claims  one  -against  another ;  nor  for  notifying  the 
adverse  co-defendants  of  such  claims.  It  also  authorises  the 
court  to  determine  the  ultimate  rights  of  the  parties  on  each 
side,  as  between  themselves ;  but  must  not  that  be  the  rights 
as  they  arise  from  the  claim  set  up  by  the  plaintiff  only  ?  For 


NEW-YORK.  383 


Winthrop  a.  Meyer. 


as  to  all  claims  between  co-defendants,  neither  knows  what  the 
other  sets  up  against  him. 

If  a  later  interpretation  of  this  section  is  to  be  allowed  in 
any  case,  so  as  to  conform  to  the  old  practice  in  chancery,  it 
cannot  be  to  obtain  a  decree  of  sale,  when  the  statute  allows 
it  only  for  the  mortgage  of  the  plaintiff. 

The  counsel  for  the  bank  would  be  allowed  to  withdraw  his 
motion ;  but  as  he  wished  the  court  to  decide  against  him, 
apparently  that  he  might  appeal,  if  its  views  were  adverse  to 
him,  his  motion  for  judgment  is  denied. 


WINTHROP  a.  MEYER.       * 

New  York  Common  Pleas  /  General  Term,  March,  1855. 
COMPETENCY  OF  WITNESS. — ASSIGNOR  OF  CHOSE  IN  ACTION. 

The  fact  that  an  assignor  of  a  chose  in  action  has  covenanted  with  the  assignee  that 
the  full  amount  of  the  claim  was  due,  does  not  render  him  incompetent  to  prove 
the  claim  in  a  suit  by  the  assignee. 

Appeal  from  a  judgment  of  the  Marine  Court. 

This  was  an  action  brought  by  Winthrop,  as  assignee  of  one 
Brown,  to  recover  $150,  for  services  rendered  to  the  defend- 
ants, Meyer  and  Loovis,  by  Brown,  as  broker,  in  procuring  a 
loan. 

On  the  trial  the  plaintiff  put  in  evidence  an  assignment  in 
writing,  of  the  claim  from  Brown  to  himself.  The  assignment 
contained  a  covenant  that  the  amount  of  $150  was  due  and 
payable  from  the  defendants. 

The  plaintiff  then  called  Brown  himself  as  a  witness,  to  prove 
the  rendering  of  the  services  alleged.  The  defendants  objected 
to  the  competency  of  the  witness,  on  the  ground  that  under 
the  covenant  of  the  assignment,  the  suit  must  be  considered  to 
be  prosecuted  for  his  benefit.  The  objection  was  overruled, 
and  the  testimony  admitted,  subject  to  exception. 


384  ABBOTTS'  PRACTICE  REPORTS. 


Winthrop  a.  Meyer. 


Judgment  having  been  rendered  for  the  plaintiff,  the  defend- 
ants appealed,  both  for  error  in  the  admission  of  Brown's  tes- 
timony, and  on  the  ground  that  the  evidence  was  not  sufficient 
to  authorize  the  judgment. 

JS.  W.  Kirkham,  for  appellants. — The  testimony  of  the  wit- 
ness, Brown,  was  inadmissible.  He  was  the  assignor  of  the 
claim  in  suit,  and  by  his  assignment  covenanted  that  the 
amount  of  $150,  was  due  and  payable  by  the  defendants,  which 
covenant  brought  him  within  the  first  clause  of  section  399 
of  the  Code,  as  a  person  for  whose  immediate  benefit  the 
action  was  prosecuted. 

W.  C.  Hornfager,  for  respondent. — The  witness,  Brown,  was 
a  competent  witness,  under  the  Code,  as  the  action  was  not  for 
his  immediate  benefit.  And  his  testimony  shows  that  he  had 
no  interest  in  the  result  of  the  action.  (Allen  v.  Franklin  Insur- 
ance Company,  9  How.  Pr.  R.  501.  Davison  v.  Minor,  ib. 
524,  and  cases  there  cited). 

DALY,  J. — The  fact  that  the  assignor  had  covenanted  that 
the  amount  of  the  claim  was  due,  and  that  he  might  become 
liable  upon  his  covenant,  in  the  event  of  the  plaintiff's  failure 
to  recover,  did  not  render  him  the  party  for  whose  benefit  the 
suit  was  brought.  He  had  an  interest  in  the  result,  which 
might  affect  his  credibility,  but  which  did  not  disqualify  him 
from  being  a  witness. 

Upon  the  evidence,  the  judgment  cannot  be  disturbed. 


NEW-YORK.  385 


Kiersted  a.  The  People  of  the  State  of  New  York. 


KIERSTED  a.  THE  PEOPLE  OF  THE  STATE  OF  NEW  YORK. 

/Supreme  Court,  First  District ;  General  Term,  April,  1855. 

JURISDICTION.     SUITS  AGAINST  A  STATE. 

There  is  no  power  in  any  of  the  Courts  of  this  State,  to  entertain  a  suit  brought 
against  the  State  itself  except  as  authorized  by  statute. 

Demurrer  to  complaint. 

This  action  was  brought  by  the  plaintiff  Kiersted  on  behalf 
of  himself  and  such  other  of  the  persons  interested  in  the  con- 
troversy, as  should  come  in,  against  the  People  of  the  State  of 
New  York,  and  the  Rector,  &c.  of  Trinity  Church. 

The  allegations  of  the  complaint,  and  the  grounds  of  the 
demurrer,  appear  in  the  opinion  of  the  Court. 

The  Attorney  General  and  others,  in  support  of  the  demurrer. 
Mr.  Sullivan,  opposed. 

MITCHELL,  J. — The  complaint  contains  substantially  the  fol- 
lowing statements. 

Anneke  Jants  being  seized  of  the  lands  now  held  by  Trinity 
Church,  in  1663  made  her  will,  and  devised  the  same  to  her 
children,  from  one  of  whom  the  plaintiff  derives  his  title  as  an 
heir  at  law.  On  March  27,  1667,  the  title  to  the  lands  was 
confirmed  to  the  children  and  heirs  of  Anneke  Jants  by 
R.  Nicolls,  governor  of  the  then  colony  of  New  York.  The 
children  and  heirs  entered  and  continued  to  have  possession, 
until  the  Duke  of  York,  exercising  the  royal  prerogative  of 
the  crown  of  England,  assumed  possession  of  the  lands  during 
their  absence  from  the  island  (now  city)  of  New  York ;  but 
such  possession  by  him,  was  assumed  only  for  the  purpose  of 
maintaining  and  preserving  the  rights  of  possession  of  the 
heirs,  according  to  the  laws  of  England  then  in  force  in  the 
colony.  On  March  25,  1677,  the  governor  leased  the  lands  to 

one  Senkness  for  twenty  years.     On  6  February,  1685,  the 
25 


386  ABBOTTS'  PRACTICE  REPORTS. 

Kiersted  a.  The  People  of  the  State  of  New  York. 

Duke  of  York,  proprietor  of  the  then  colony  of  New  York, 
became  king  of  England,  and  these  lands  were  thereafter 
known  as  the  king's  farm.  On  August  19,  1697,  Governor 
Fletcher  (as  governor  under  "William  III.)  leased  the  lands  to 
Trinity  Church  for  seven  years,  describing  them  in  the  lease 
executed  in  the  name  of  the  king,  "  as  our  farm,  known  as  the 
king's  farm."  On  May  12,  1699,  a  colonial  act  was  passed, 
annulling  this  and  other  leases  as  extravagant,  and  declaring 
that  no  governor  should  lease  for  a  longer  period  than  his  own 
term  of  office,  "  the  king's  farm,  and  certain  other  specified 
lands,  being  for  the  benefit  and  accommodation  of  his  majesty's 
governors,  and  commanders  in  chief  for  the  time  being."  On 
May  9,  1702,  Governor  Cornbury  leased  the  lands  of  Trinity 
Church  so  long  as  he  should  continue  to  be  governor.  The 
Church  held  over  under  the  lease  under  Governor  Lovelace  and 
the  successive  governors,  until  the  British  evacuated  the  city 
of  New  York  on  November  25,  1783.  In  the  reign  of  George 
II.  in  1730,  1731, 1732,  these  lands  were  expressly  recognized  as 
the  "  king's  farm,"  and  were  then  reserved  for  the  use  of  the 
governors  and  officers  of  the  crown  in  the  province  ;  the  Mont- 
gomery and  Dongan  charters  reserving  from  the  grant  of  lands 
to  the  city,  "  the  king's  farm." 

The  plaintiff  alleges  that  there  was  an  obligation  legal  and 
equitable  on  the  successive  kirrgs  of  England  to  restore  the 
possession  to  the  heirs  of  his  ancestor,  and  that  this  obligation 
has  devolved  on  the  State  of  New  York.  That  the  church 
pretends  to  hold  under  what  purports  to  be  a  grant  in  fee 
from  Lord  Cornbury,  made  November  23,  1705,  but  that 
the  grant  is  void  and  could  not  be  made  on  account  of  the  act 
of  May  12,  1699. 

The  plaintiff  demands  that  the  State  be  required  to  demand 
possession  of  the  lands  from  the  church,  and  an  account  from 
the  church  of  all  moneys  received  by  it  since  the  year  1783, 
and  that  the  State  render  possession  of  the  lands  to  the  said 
heirs  by  proper  conveyances ;  and  that  if  the  State  make 
•default,  the  church  be  required  to  do  the  same  things ;  and 
that  a  receiver  be  appointed  and  an  injunction  be  grained. 

For  nearly  eighty  years,  the  people  of  the  State  of  New 
York  have  been  independent,  and  if  liable  to  be  sued  in  their 


NEW-YORK.  387 


Kiersted  a.  The  People  of  the  State  of  New  York. 


own  courts,  might  have  been  sued  within  that  time.  Yet  no 
other  instance  is  known  in  which  a  suit  was  ever  before  com- 
menced against  them  in  their  own  tribunals,  unless  when  they 
had  specially  authorized  the  suit,  or  they  or  their  Attorney 
General  were  made  parties  in  an  equity  suit  with  other  defend- 
ants on  account  of  some  lien  or  claim  held  by  the  State  avow- 
edly subject  to  the  prior  claim  of  another.  Then  they  were 
made  co-defendants,  not  to  defeat  their  claim,  or  to  compel  them 
to  do  justice,  but  to  give  them  the  opportunity  (if  they  chose)  to 
come  in  and  protect  their  rights.  No  process  issued  against 
the  people,  but  the  complaint  prayed  for  leave  to  serve  the 
Attorney  General  with  a  copy  of  the  bill,  that  he  might 
answer  or  let  the  bill  be  taken  as  confessed.  If  such  a  suit  as 
this  had  been  sustainable,  it  is  remarkable  that  it  was  not 
resorted  to  before.  It  was  generally  considered  an  axiom  that 
the  people  could  not  be  sued  in  their  own  tribunals,  and  the 
cases  in  which  they  were  made  parties  to  suits,  or  in  which 
the  king  of  England  allowed  an  investigation  of  claims  against 
property  held  by  him  to  be  prosecuted  in  certain  courts,  were 
deemed  from  their  peculiarities  as  hardly  exceptions  to  the 
rule.  Blackstone  says,  "  if  any  person  has  in  point  of  property 
a  just  demand  upon  the  king,  he  must  petition  him  in  his  high 
court  of  chancery  when  Chancellor  will  administer  right  as  a 
matter  of  grace,  though  not  upon  compulsion,"  and  quotes 
Puffendorf,  "  that  a  subject  hath  no  way  to  oblige  his  prince 
to  give  him  his  due,  and  if  the  prince  gives  him  leave  to  enter 
an  action  against  him  in  his  own  courts,  it  proceeds  rather 
upon  natural  equity  than  upon  the  municipal  law"  For  the 
end  of  such  action  is  not  to  compel  the  prince  to  observe  the 
contract,  but  to  persuade  him.  (1  Bl.  Com.,  243).  Our  State 
has  no  courts  which  administer  law  as  a  matter  of  grace  and 
not  of  right,  or  which  have  a  jurisdiction  to  persuade  and  not 
to  compel  those  who  appear  before  them. 

The  practice  under  the  petition  de  droit  or  monstrans  de 
droit  was  referred  to  by  the  plaintiff  as  applicable  to  this  case, 
and  it  was  insisted  that  the  king  held  these  lands  subject  to  the 
right  of  the  heirs  and  subject  to  have  that  right  protected  by 
means  of  one  of  those  remedies ;  and  that  the  lands  devolved 
on  the  State,  subject  to  the  same  rights,  the  same  obligations 


388  ABBOTTS'  PRACTICE  REPORTS. 

Kiersted  a.  The  People  of  the  State  of  New  York. 

and  remedies,  and  that  these  remedies  were  usually  prosecuted 
before  the  chancellor  in  England  and  passed  to  this  court,  al- 
though in  the  form  modified  by  the  code. 

Blackstone,  in  treating  of  the  modes  of  redress  for  injuries 
proceeding  from  the  crown,  says  expressly,  "no  action  will  lie 
against  the  sovereign,  for  who  shall  command  the  king.  Yet 
the  law  has  furnished  the  subject  with  a  decent  and  respectful 
mode  of  redress  by  informing  the  king  of  the  matter  in  dispute." 
(3  Bl.  Com.,  255).  This  is  done  by  petition  de  droit  or  mon- 
strans  de  droit.  But  to  obtain  either  of  these  remedies,  appli- 
cation must  be  made  to  the  king,  and  in  any  such  case  there 
is  no  jurisdiction  in  any  of  the  courts  to  proceed,  until  the 
king  indorses  his  order  in  that  particular  case.  By  such  act, 
the  king  (who  formerly  constituted  the  court)  submits  himself 
voluntarily  in  each  case  to  the  decision  of  the  tribunal  to  which 
the  case  may  be  referred,  whether  to  the  barons  of  the  exchequer 
as  in  the  banker's  case  (5  Mod,,  29  and  14  How.  State  trials,  7) 
or  to  the  king's  bench  if  it  be  referred  to  them  to  examine  the 
matter,  or  to  the  chancellor  if  the  direction  be  simply  soit  droit 
fait  al  partie,  (see  Vin.  Abr.  Prerog.  2.  Opinion  of  Iredell, 
J.,  in  2  Dallas,  444).  Here  that  permission  to  the  courts  is 
wanting,  and  our  legislature,  which  alone  has  power  to  sur- 
render the  custody  and  ownership  of  lands  held  by  the  people, 
and  to  give  to  the  courts  authority  to  take  cognizance  of  a  suit 
directly  against  the  people,  has  conferred  no  such  power  on  the 
State  courts.  They  have  not  had  any  petition  that  "  right  be 
done"  presented  to  them  in  this  case,  nor  given  to  this  court 
power  to  exercise  jurisdiction  over  the  people. 

It  is  said  the  act  of  April  15,  1854,  (ch.  280)  gives  this  juris- 
diction, but  the  demurrer  in  this  case  had  been  interposed  by 
the  people  before  that  act  was  passed,  and  it  only  authorized 
that  suit  to  have  a  preference  on  the  calendar,  and  gave  a  like 
preference  to  any  other  suits  which  the  Attorney  General 
might  deem  it  expedient  to  prosecute  to  enforce  the  rights  of 
the  State  against  this  plaintiff  or  the  church  or  other  claimants. 
It  cut  off  no  defence  that  the  State  might  make  to  this  suit, 
and  one  of  these  defences  is  that  the  State  cannot  be  thus 
sued. 

There  were  reasons  for  allowing  judicial  tribunals  to  pass  on 


NEW-YOKE.  389 


Kiersted  a.  The  People  of  the  State  of  New  York. 


the  right  of  the  king  to  property  held  by  him  and  claimed  by 
another  which  would  not  apply  to  the  State.  He  held  such 
property  as  an  individual.  At  one  time  his  individual  pro- 
perty must  have  formed  the  greatest  part  of  his  resources,  and 
his  suppliesfrom  Parliament  were  comparativelysmall  and  given 
seldom  and  grudgingly.  This  individual  property  was  added 
toby  attainders,  forfeitures  and  escheats,  whether  for  crimes  or 
default  of  heirs  of  former  owners  or  other  causes.  His  title  to 
these  new  acquisitions  was  found  by  inquisition,  where  the 
true  owners  would  generally  have  no  opportunity  of  being 
heard,  and  the  king  might  thus  frequently  become  the  possessor 
of  lands  as  forfeited  to  him  by  the  fault  or  misfortune  of  one 
who  had  had  no  title  or  only  a  defeasible  one  and  the  true  title 
was  in  another. 

When  forfeitures  were  frequent  it  must  have  been  essential 
to  the  safety  of  the  crown  that  it  should  allow  "  right  to  be 
done"  to  such  parties,  although  the  crown  by  its  officers  had 
laid  its  hands  on  their  lands.  But  if  the  title  to  those  lands  or 
other  property  held  by  the  king  had  passed  to  the  State  in 
England,  so  that  he  ceased  to  hold  them  and  Parliament  had 
the  control  over  them,  can  it  be  imagined  that,  after  that,  the 
petition  de  droit  would  be  applicable,  and  that  the  English 
Parliament,  or  the  English  people  could  be  sued  in  their  own 
courts  on  the  king's  order,  or  even  without  his  consent  ?  If 
the  English  legislature  and  the  English  people  could  not  be 
sued  in  such  case,  neither  can  the  people  of  our  own  State. 
And  if,  as  is  assumed,  the  people  can  be  sued  whenever  the 
king  could  be  proceeded  against  on  petition  de  droit  or  mon- 
strans  de  droit,  then  every  State  (where  the  common  law  pre- 
vails) can  be  sued  on  its  obligations,  when  it  has  pledged  cer- 
tain revenues  to  meet  them ;  for  it  was  held  in  the  Banker's 
case  that  the  king  could  be  thus  proceeded  against  in  such  a 
case  (see  above).  Such  a  doctrine  would  be  equally  new  and 
startling.  Those  who  have  claims  upon  the  State  rely  upon  the 
public  faith  ;  and  self-interest  and  a  sense  of  honor  and  of  right 
have  been  yet  generally  -found  sufficient  means  of  securing 
justice  to  claimants  against  the  State. 

A  brief  reference  to  parts  of  the  history  of  our  own  law  will 
show  how  tenacious  the  States  have  been  of  their  rights  on  this 


390  ABBOTTS'  PRACTICE  REPORTS. 

Kiersted  a.  The  People  of  the  State  of  New  York. 

subject.  The  constitution  of  the  United  States  declared  that 
the  judicial  power  of  the  United  States  should  extend  among 
other  matters  to  controversies  between  two  or  more  States,  and 
between  a  State  and  citizens  of  another  State  (Art-  3,  §  2). 
Under  this  power,  suits  were  brought  in  the  United  States 
Court  of  citizens  of  another  State,  against  the  State  of  Mary- 
land in  1791,  (2  Dallas,  401)  and  by  another  against  the  State 
of  New  York  (ib.)  and  by  another  against  the  State  of  Georgia 
in  1793  (2  ib.  419)  and  by  another  against  the  State  of  Virginia 
(3  ib.  320).  Georgia  and  Virginia  protested  against  the  exer- 
cise of  this  jurisdiction,  and  Georgia  refused  to  appear  in 
Court  except  to  make  its  protest.  Judge  Iredell  insisted  in  an 
able  and  learned  opinion  that  the  Court  had  no  jurisdiction  in 
such  an  action,  which  was  on  a  contract.  Chief  Justice  Jay 
with  Justices  Blair,  Wilson  and  Gushing,  held  that  the  words 
of  the  constitution  clearly  conferred  the  jurisdiction,  and  they 
ordered  that  unless  the  State  of  Georgia  should  appear  by  a 
certain  day  or  show  cause  to  the  contrary,  judgment  should 
pass  by  default ; — but  Chi'ef  Justice  Jay  dreading  the  conse- 
quences of  the  decision,  said  he  was  far  from  being  prepared 
to  say  that  an  individual  may  sue  a  State  on  bills  of  credit 
issued  before  the  constitution  was  established.  He  probably 
would  have  been  as  little  prepared  to  allow  the  suit  on  a  claim 
to  lands  when  the  right  had  also  existed  before  the  constitution 
was  established.  This  decision  was  necessary  under  the  words 
of  the  constitution ;  it  was  made  in  1793,  and  (as  we  are  told 
in  3  Dallas,  378)  it  produced  the  proposition  in  congress  for 
amending  that  article  of  the  constitution,  and  it  was  promptly 
amended  by  the  requisite  number  of  States,  so  that  "  it  should 
not  be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State."  The  people  thus  declared  their  sovereign  will 
that  while  a  State  might  sue,  it  should  not  be  sued  by  an  indi- 
vidual in  the  United  States  Court,  the  only  courts  which  ever 
had  any  express  authority  to  entertain  such  a  suit.  And  the 
Supreme  Court  of  the  United  States  so  readily  assented  to  this 
expression  of  the  will  of  the  States,  that  they  unanimously 
held  that  it  applied  even  to  suits  then  pending,  and  refused  to 


NEW-YOKE.  301 


Kiersted  a.  The  People  of  the  State  of  New  York. 


proceed  further  in  any  such  suits,  (Hollingsworth  v.  State  of 
Virginia,  3  Dallas,  382). 

In  our  State  no  general  power  has  ever  been  given  to  any 
court  to  entertain  a  suit  against  the  State,  but  the  legislature 
has,  by  special  legislation,  pointed  out  in  the  cases  and  manner 
in  which  it  would  allow  the  title  to  property  held  by  it  to  be 
contested,  and  as  it  has  thus  given  the  permission  in  a  few 
special  cases  only,  it  shows  that  it  was  not  intended  that  the 
permission  should  extend  to  other  cases.  The  Revised  Statutes 
(1  Rev.  Stats.,  718,  §  2),  declare  that  all  escheated  lands,  when 
held  by  the  State  or  its  grantors,  shall  be  subject  to  the  same 
trusts,  incumbrances,  charges,  rents  and  services  to  which  they 
would  have  been  subject  had  they  descended;  and  the  Court 
of  Chancery  shall  have  power  to  direct  the  Attorney  General 
to  convey  such  lands  to  the  parties  equitably  entitled  thereto, 
according  to  their  respective  rights,  or  to  such  new  trustee  as 
may  be  appointed  by  such  Court.  The  Revisers  give  the 
reason  for  this  law;  they  say  (3  R.  £,  563),  "By  the  common 
law,  lands  held  in  trust,  if  they  escheat  to  the  king,  are  held  by 
him,  free  from  the  trust.  The  same  doctrine  would  probably  be 
applied  to  the  people  of  this  State.  This  severe  rule  has  in 
part  been  remedied  in  England  by  the  act  of  47,  Geo.  3,  c.  29, 
and  it  is  presumed  that  the  legislature  of  this  State  will  le 
equally  ready  to  amend  the  law  in  this  particular."  So  even 
if  these  lands  had  escheated  for  default  of  heirs  of  the  trustee, 
the  people  would  have  held  them  discharged  of  the  trust;  and 
now  where  they  amend  the  law  in  that  respect  they  confine 
the  amendment  to  the  case  of  escheated  lands,  and  make  the 
remedy  to  be  not  in  suit  against  the  State,  but  in  the  chancel- 
lor's directing  the  Attorney  General  to  convey  the  lands  to  the 
parties  equitably  entitled. 

So  the  Revised  Statutes  also  allow  the  same  proceedings  to 
be  had  against  the  State  for  the  partition  of  lands  held  by  the 
State,  and  by  individuals  in  common  in  the  same  manner  as 
in  suit  against  individuals,  (2  Rev.  Stats.,  331  §  99). 

So  it  required  an  express  Statute  to  subject  the  people  to 
costs,  or  to  make  the  Statute  of  limitations  a  bar  to  their  claims 
(see  2  Rev.  Stats.,  552,  §  13  or  292,  §  1).  The  provision  for 
costs  to  be  paid  by  the  people,  is  only  when  the  people  are 


392  ABBOTTS'  PRACTICE  REPORTS. 

Kiersted  a.  The  People  of  the  State  of  New  York. 

plaintiffs,  not  when  the  people  are  defendants;  showing  that 
the  latter  was  a  case  not  supposed  or  supposable,  except 
when  it  was  specially  allowed. 

The  direct  authorities  on  the  subject  are  few,  because  it  is 
seldom  that  the  question  can  arise.  In  Delafield  v.  the  State 
of  Illinois,  on  appeal  in  the  Court  for  the  Correction  of  Errors, 
(2  Hill,  159)  the  counsel  for  the  appellant  had  contended  that 
the  State  could  not  sue  in  a  State  court ;  but  Bronson,  Chief 
Justice,  successfully  controverted  this  position,  and  in  the 
course  of  his  opinion  (p.  169)  said,  "  "When  a  State  is  made  de- 
fendant the  State  courts  cannot  exercise  jurisdiction."  In 
the  same  case  (8  Paige  533),  the  chancellor  had  said,  "  The 
State  cannot  indeed  be  sued  by  any  private  individual  or  cor- 
poration." It  therefore  may  be  impossible  to  coerce  a  pay- 
ment by  any  legal  process,  unless  the  stock  should  come  into 
the  possession  of  a  sovereign  state,"  &c.  The  Chancellor,  in  a 
subsequent  case,  explained  with  his  usual  clearness,  the  prin- 
ciple on  which  a  State  ever  is  made  a  defendant  in  a  State 
court.  In  Garr  v.  Bright  (1  Barb.  Ch.  It.  163),  he  says,  "  It 
is  true  this  court  has  not  the  power  absolutely  to  compel  a 
sovereign  State  to  perform  a  decree  which  may  be  made 
against  such  State.  And  if  the  State  of  Indiana  should  be 
made  a  party  defendant  in  this  suit,  it  would  not  be  with  any 
expectation  of  compelling  it  to  transfer  to  the  complainant  the 
stock  standing  in  its  name  upon  the  books  of  the  Apala- 
chicola  Land  Company.  But  it  would  be  to  enable  the  State 
to  appear  and  protect  its  right,  if  it  has  any,  as  one  of  the  ces- 
tuis  que  trust,  in  the  proceeds  of  the  land  of  that  association, 
which  lands  are  vested  in  some  of  the  other  defendants  in  this 
suit  as  trustees  for  the  stockholders,  so  that  such  trustees  may 
be  protected  from  the  risk  and  expense  of  a  double  litigation 
with  those  who  have  conflicting  claims  upon  the  trust  fund. 
And  upon  the  same  principle  the  Attorney  General  would  be 
made  a  party  to  the  suit,  if  the  people  of  this  State  claimed  an 
interest  as  one  of  the  cestuis  que  trust,  and  the  complainant  was 
asking  similiar  relief  against  the  trustees  as  the  claimant  of  the 
same  interest ;  although  the  State  itself  cannot  le  sued  in  its 
own  Courts  directly.  It  is  also  the  practice  to  make  the 
Attorney  General  a  party  to  a  foreclosure  suit,  when  the 


NEW-YOEK.  393 


Quintard  a.  Secor. 


people  of  this  State  have  a  subsequent  lien  upon  the  mort- 
gaged premises,  by  judgment  or  otherwise,  so  as  to  give  to  the 
purchaser  under  the  decree  of  foreclosure,  a  perfect  title  to  the 
premises  discharged  of  the  lien  of  the  State,  and  when  any- 
other  State  or  government  has  a  similar  lien,  I  see  no  valid 
objection  to  making  it  a  party  defendant  for  the  same  purpose." 

Here  the  complaint  shows  that  the  king  leased  these  lands 
as  the  king's  own  lands,  and  reserved  rent  on  them  for  the  use 
of  the  Governors  for  the  tame  being,  and  that  the  lanjds  were 
known  as  the  King's  farm,  and  as  such  leased  to  the  church; 
— and  asks  for  direct  relief  against  the  people — that  the  people 
be  compelled  to  demand  possession  of  the  lands  from  the 
church,  and  an  account  of  the  rents,  and  to  render  to  the 
plaintiff,  and  other  heirs,  the  possession  of  the  premises ;  and 
only  asks  relief  against  the  church  if  the  People  make  default. 
The  action  is  therefore  directly  against  the  people,  and  only 
against  the  church  if  the  people  make  default.  The  people  do 
not  make  default.  There  is  thus  no  course  of  action  against 
the  church,  as  that  sought  against  it  is  only  secondary  to  that 
sought  against  the  State. 

The  nature  of  the  relief  sought  is  extraordinary,  no  trust 
estate  being  alleged  and  the  application  to  a  Court,  and  not  to 
the  Legislature  to  require  the  State  to  act,  is  still  more  extra- 
ordinary. 

Judgment  should  be  for  the  defendants  with  costs. 


aUINTAED  a,  SECOR. 

New  York  Common  Pleas  /  Special  Term,  April,  1855. 
ADMISSION  OF  PART  OF  PLAINTIFF'S  CLAIM. — SATISFACTION. 

The  power  of  the  court  to  order  the  satisfaction  of  a  part  of  plaintiff's  claim  ad- 
mitted to  be  just,  under  $  244  of  the  Code,  is  not  confined  to  cases  in  which  one, 
or  more,  of  several  distinct  items  of  claim  is  admitted  in  the  precise  extent  in 
which  it  is  set  up  ;  but  such  an  order  may  be  made  where  a  part  of  a  sum  claimed, 
is  admitted  to  be  due. 

A  concession  in  the  answer  that  not  more  than  a  specified  sum  was  due  to  the 
plaintiff, — Held,  an  admission  that  that  sum  was  due,  and  so  an  admission  of  part 
of  plaintiff's  claim. 


394  ABBOTTS'  PRACTICE  REPORTS. 

Quintard  a.  Secor. 

Where  defendant  by  answer  admits  a  part  of  plaintiff's  claim  to  be  just,  an  order 
requiring  him  to  satisfy  such  part  will  be  made,  in  the  Common  Pleas,  not- 
withstanding that  the  defendant  has,  even  before  answering,  made  an  offer  in 
writing  to  allow  the  plaintiff  to  take  judgment  for  the  sum  admitted  to  be  due. 

Motion  that  defendants  be  required  to  satisfy  a  part  of 
plaintiffs'  claim  admitted  by  his  answer  to  be  just. 

The  facts  upon  which  the  motion  was  based,  appear  suffi- 
ciently in  the  opinion  of  the  court. 

Benedict,  Scoville  &  Benedict  for  the  motion. 
Mr.  McMahon  opposed. 

WOODRUFF,  J. — The  plaintiffs  herein  allege  in  their  com- 
plaint that  they  have  rendered  services  and  furnished  materials, 
use  of  tools,  machinery,  &c.,  to  the  defendants,  which  are  rea- 
sonably worth  the  sum  of  $651.15,  for  which  sum  the  defend- 
ants are  indebted  to  them,  with  interest  from  the  28th  day  of 
September,  1854. 

After  the  service  of  the  summons  and  complaint,  and  before 
answering,  the  defendants  served  an  offer  to  allow  judgment 
to  be  entered  in  the  plaintiff's  favor  for  the  sum  of  $572.52, 
with  interest  from  the  28th  day  of  September,  1854,  with  costs. 

The  offer  not  being  accepted,  the  defendants  put  in  an 
answer  admitting  that  the  services  were  rendered,  and  the 
materials,  use  of  tools,  machinery,  &c.,  were  furnished,  but 
denying  that  the  services  were  reasonably  worth  the  sum  of 
$651.15,  and  on  the  other  hand  alleging  that  they  were  worth 
only  the  sum  of  $572.52,  and  that  there  is  no  other  or  greater 
sum  due  from  the  defendants  to  the  plaintiffs  than  the  said 
sum  of  $572.15,  with  interest  thereon  from  the  28th  day  of 
September,  1854. 

Upon  the  coming  in  of  the  answer,  the  plaintiffs  have  ap- 
plied to  the  court,  under  §  244  of  the  Code  of  Procedure,  for 
an  order  that  the  defendant  "  satisfy  that  part  of  the  plaintiff's 
claim  which  he  admits  to  be  due,  being  the  sum  of  $572.52, 
with  interest  from  September  28, 1854.  This  motion  is  opposed 
by  the  defendants  upon  three  grounds : — 

1.  That  the  case  is  not  such  an  one  as  is  contemplated  by 
the  section  referred  to. 


NEW-YORK.  395 


Quintan!  a.  Secor. 


2.  That  the  admission  is  not  of  that  specific  character  which 
precludes   inquiry,  being  only  a  concession  that  "  not  more 
than  the  sum  named  is  due."    (Citing  Dolan  -y.  Petty,  4  Sandf. 
S.  C.  72.,  673). 

3.  That  where  the  defendant  has  made  an  offer  to  allow 
judgment  to  be  taken  for  the  sum  sought,  the  court  should  not 
make  an  order  for  its  payment.     (Citing  Smith  v.  Olssen,  Ib. 

711). 

I.  Under  this  first  objection,  it  is  insisted  that  the  language 
of  the  Code,  "  when  the  answer  of  the  defendant  admits  part 
of  the  plaintiff's  claim  to  be  just,"  applies  only  to  a  case  in 
which  the  complaint  of  the  plaintiff  proceeds  upon  more  than 
one  cause  of  action  or  more  than  one  item  of  claim,  one  or 
more  of  which  is  admitted  in  the  precise  extent  in  which  it  is 
set  up  by  the  plaintiff.  As  for  example,  when  the  action  is 
upon  two  notes  or  bonds,  and  one  of  them  is  admitted  to  be  due 
and  payable,  or  when  the  action  is  for  certain  specified  goods, 
and  the  defendant  admits  the  purchase  of  certain  of  the  goods 
at  the  very  price  claimed. 

I  cannot  yield  to  this  view  of  the  construction  of  the  statute. 
Its  adoption  necessarily  results  in  excluding  it  from  application 
to  any  case,  in  which  the  plaintiff's  cause  of  action,  as  set  up,  is 
single  and  entire ;  and  nothing  in  its  terms  nor  (in  my  judg- 
ment) in  its  spirit,  warrants  any  such  restriction.  The  terms 
"  part  of  the  plaintiffs  claim,"  are  at  least  equally  well  suited 
to  a  portion  of  one  claim,  as  they  are  to  one  of  two  claims, 
and  I  think  better,  and  had  the  legislature  intended  any  such 
restriction,  it  would  have  been  quite  easy  and  much  more  ex- 
plicit to  say,  "  when  the  answer  admits  any  one  or  more  items 
in  the  plaintiff's  claim  or  claims  to  be  just,"  &c. 

This,  however,  is  not  the  only  ground  of  my  opinion  of  the 
meaning  of  the  legislature.  By  section  142  of  the  Code,  the 
requisites  of  a  complaint  are  given,  and  it  must  contain  three 
things  which  are  there  defined  with  particularity.  1st.  The 
title  of  the  cause.  2d.  The  statement  of  the  facts  constituting 
the  cause  of  action,  and,  3d.  A  demand  of  the  relief  to  which 
the  plaintiff  supposes  himself  entitled,  and  if  the  recovery  of 
money  be  demanded,  the  amount  thereof  shall  be  stated. 

Now  it  is  obvious  that  the  first  two  of  these  requisites  contain 


396  ABBOTTS'  PRACTICE  REPORTS. 

Quintard  a.  Secor. 

no  "  claim''  whatever ;  the  third,  and  the  third  only,  contains 
the  plaintiff's  claim,  and  that  alone  declares  the  amount  of 
money  claimed.  All  else  in  the  complaint  is  mere  allegation 
of  facts  lying  at  the  foundation  of  the  plaintiff's  title  to  relief, 
but  his  claim  is  his  demand  of  that  relief.  If  then  he  demands 
a  recovery  of  one  hundred  dollars,  and  the  defendant  admits 
that  he  is  entitled  to  recover  fifty  dollars,  he  "  admits  a  part 
of  his  claim  to  be  just"  whether  the  facts  stated,  and  out  of 
which  the  plaintiff's  title  to  recover  arises,  consist  of  one  note 
or  two. 

Again,  I  perceive  no  reason  why  such  a  discrimination  should 
be  made.  If  a  defendant  admits  that  half  the  sum  specified 
in  one  note  is  due  and  payable,  it  is  no  less  just  that  he  should 
pay  that  half,  than  that  he  should  pay  one  of  two  notes  when 
the  plaintiff  claims  both.  A  legislature  would  exhibit  a  sin- 
gular inconsistency  in  making  such  a  distinction.  For  ex- 
ample : — a  defendant  gives  to  one  man  a  single  note  for  $1000. 
To  another  he  gives  two  notes  for  $500  each.  Being  sued  by 
both,  he  admits  that  $500  and  interest  is  due  on  the  first  note, 
and  in  the  other  suit,  he  admits  that  one  note  and  the  interest 
thereon  is  due,  and  that  only.  Is  there  any  reason  or  equity 
in  furnishing  this  provisional  remedy  to  one  plaintiff,  and 
witholding  it  from  the  other  ?  I  can  find  none. 

"We  may  properly  assume  that  both  parties  are  acting  in 
good  faith,  each  supposing  that  he  is  only  insisting  upon  his 
legal  rights;  but  conceding  this,  there  is  no  reason  that  either 
should  retain  in  his  hands  money  to  which  he  admits  that  the 
other  is  entitled.  The  spirit  and  the  scope,  and  in  general  the 
effect  of  the  Code  is  to  confine  litigation  to  the  real  matters  in 
dispute, — to  bring  parties  before  the  court  upon  the  mere 
merits  of  their  controversies,  and  this  provision  is  plainly  a 
part  of  the  scheme,  and  to  me  it  seems  a  most  just  arid  equita- 
ble one. 

As  on  the  one  hand  the  defendant  has  it  in  his  power  to 
tender  the  sum  admitted  to  be  due,  or  to  offer  to  submit  to 
judgment,  and  so  put  the  plaintiff  to  his  election  to  litigate 
further  or  not,  at  the  peril  of  costs  if  he  do  not  succeed ;  so 
when  the  defendant  admits  a  sum  to  be  due,  the  plaintiff  is 


NEW-YORK.  397 


Quintard  a.  Secor. 


permitted  to  require  its  payment,  that  the  real  matter  of  con- 
test, and  that  only,  may  be  before  the  court. 

II.  But  it  is  urged  that  a  concession  that  "  not  more  than  a 
sum  named  is  due,"  is  not  an  admission  that  a  part  of  the 
plaintiff's  claim  is  just,  and  such  appears  to  have  been  the 
opinion  of  the  court  in  the   case   cited.     (Dolan  v.   Petty, 
4  Sand/.,  673). 

Without  the  sanction  of  such  a  decision,  I  should  hardly 
have  deemed  this  argument  entitled  to  grave  consideration. 
Suppose  the  ease  brought  to  trial,  and  the  plaintiff  rested  his 
case  upon  the  pleadings,  would  the  court  hesitate  to  order 
judgment  for  the  plaintiff  to  the  extent  of  the  sum  so  named? 
Nay,  more,  would  they  permit  the  defendant  to  call  a  single 
witness  to  prove  that  the  plaintiff  was  entitled  to  less  ? 

Is  it  possible  that  when  a  defendant  says,  "I  admit  that 
$572.52  is  due,  and  deny  that  the  goods  were  worth  more," 
he  in  legal  effect  does  anything  more  than  when  he  says,  "  I 
aver  that  the  goods  were  worth  only  $572.52,  and  deny  that 
any  other  or  greater  sum  is  due."  ? 

The  rule  of  pleading,  and  the  construction  of  pleadings  have, 
it  seems  to  me,  undergone  strange  transformations,  if  these 
'questions  must  not  be  answered  in  the  negative. 

The  cases  of  Roberts  v.  Law,  (4  Scmdf.,  642),  and  Dolan  v. 
Petty  (/£.,  678),  may  on  this  subject  be  usefully  contrasted. 

III.  It  is  claimed  that  inasmuch  as  the  defendant  has  offered 
to  suffer  judgment  to  be  entered  against  him  for  the  sum  ad- 
mitted, this  provisional  remedy  should  be  withheld,  and  Smith 
v.  Olssen  is  cited  as  above  stated. 

The  proposition  seems  to  me  to  amount  to  this.  A  defend- 
ant may  say  to  a  plaintiff,  I  admit  that  the  sum  that  I  name 
is  due,  I  do  not  deny  that  I  am  able  to  satisfy  it  at  any  moment, 
but  if  you  will  not  consent  to  take  judgment  for  that  amount, 
I  will  retain  the  money,  and  you  shall  not.  have  the  benefit  of 
the  provisional  remedy  to  which  plaintiffs  are  in  general  en- 
titled. If  you  will  not  give  up  all  of  your  claim  that  I  do  not 
choose  to  concede,  you  shall  have  nothing  until  the  end  of  our 
litigation,  and  if  it  prove  that  I  have  then  expended  the 
amount  in  an  unjust  litigation,  yours  be  the  loss,  should  my 
means  of  payment  be  then  exhausted. 


398  ABBOTTS'  PKACTICE  REPORTS. 

Quintard  a.  Secor. 

It  seems  to  me  that  this  is  annexing  a  condition  to  the  grant- 
ing of  this  motion  which  the  legislature  did  not  contemplate. 

A  defendant  by  making  such  an  offer  has  done  nothing 
meritorious,  when  he  admits  its  justice.  Nor  does  such  an 
offer  place  the  plaintiff  in  any  better  situation  than  the  very 
admission  in  the  answer  does,  for  when  such  an  admission  is 
found  in  the  answer,  the  plaintiff  may  take  judgment  for  the 
sum  admitted,  if  he  pleases  to  do  so,  whether  the  defendant  has 
made  such  an  offer  or  not. 

If  such  an  offer  is  made,  he  may  take  judgment  because 
such  offer  is  made. 

If  such  an  admission  is  found  in  the  answer,  he  may  have 
judgment  because  it  is  so  admitted. 

To  say  that  because  the  defendant  has  offered  to  submit  to 
judgment  for  a  part  of  the  claim,  the  plaintiff  shall  not  have 
an  order  to  satisfy  that  part,  which  is  admitted  in  the  answer 
to  be  just,  is  in  effect  to  say  that  he  shall  not  have  such  order, 
because  its  justice  is  twice  admitted. 

I  fully  concur  in  what  has  been  said  in  other  courts  and  in 
this  court,  (see  Merritt  v.  Thompson,*  Jan.  General  Term,  1855), 
of  the  caution  to  be  observed  in  administering  this  remedy. 
It  may  be  that  an  order  for  the  payment  of  the  money,  will 
result  in  an  application  for  an  attachment  in  case  of  disobedi- 
ence, and.  if  a  defendant  be  found  in  contempt,  an  imprison- 
ment be  called  for. 

I  do  not  for  a  moment  suppose,  (as  I  have  on  a  former  occa- 
sion suggested),  that  the  legislature  intended  by  the  provision 
under  consideration,  to  abrogate  the  laws  abolishing  imprison- 
ment for  debt.  Neither  the  language,  nor  my  view  of  the 
design  of  the  legislature  indicates  such  an  intention.  Un- 
questionably the  resort  to  this  summary  mode  of  compelling 
the  payment  of  the  sum  admitted  to  be  due  is  controlled  by  a 
just  discretion  given  to  the  court.  And  if  inability  to  pay  is 
shown  by  the  defendant,  it  should  prevail  either  to  induce  the 
court  in  the  first  instance  to  withhold  the  order,  or  to  excuse 
the  apparent  contempt  of  the  defendant  in  disobeying  it  See 
Meyers  v.  Trimble,  f  April  General  Term,  1855. 

But  where,  as  in  the  present  case,  the  parties  stand  before 

*  Ante,  223.  t  Post,  339. 


NEW-YORK.  399 


Meyers  a.  Trimble. 


me,  the  plaintiff  claiming  $651.15,  and  the  defendant  admit- 
ting that  $572.52  is  justly  due,  and  no  reason  whatever  is  given 
for  not  tendering  or  paying  the  sum  so  admitted  except  that 
the  plaintiff  will  not  accept  a  judgment  therefor  in  full  satis- 
faction, I  feel  constrained  to  grant  the  order. 


MEYERS  a.  TRIMBLE. 
New  York  Common  Pleas  /   General  Term,  April,  1855. 

ADMISSION   OF  PART  OF  PLAINTIFF'S   CLAIM. — SATISFACTION. — 

ATTACHMENT. 

When  an  order  is  made  under  section  244  of  the  Code,  requiring  a  defendant  who 
admits  a  part  of  the  plaintiff's  claim  to  be  just,  to  satisfy  that  part,  and  such  order 
is  served  on  the  defendant  personally  and  he  refuses  to  obey  it,  the  defendant  may 
be  attached  for  such  disobedience,  and  if  he  does  not  show  an  excuse  for  it,  may  be 
punished  as  for  a  contempt. 

It  seems  that  inability  to  pay  the  sum  admitted  to  be  due,  would  be  a  sufficient 
excuse  for  the  apparent  contumacy. 

Appeal  from  the  order  granting  an  attachment,  made  in  this 
cause  at  special  term  in  February,  1855,  as  reported  ante,  220. 

Meeks  <&  Waite  for  appellant. 
A.  Matthews  for  respondent. 

BY  THE  COURT. — WOODRUFF,  J. — The  order  appealed  from 
herein  is  not  submitted  with  the  papers  on  this  appeal,  but 
only  a  certificate  by  one  of  the  Judges  at  Special  Term,  that 
the  questions  arising  on  the  motion  there,  are  of  sufficient  im- 
portance and  doubt  to  render  a  review  by  the  General  Term 
proper. 

It  is,  however,  stated  in  the  points  submitted  by  the  respond- 
ent, that  the  order  in  question  was  made  under  the  following 
circumstances  and  is  of  the  purport  following.  The  plaintiff 
having  brought  his  action  upon  a  promissory  note,  the  defend- 
ants by  their  answer  allege  a  counter  claim  by  way  off  set  off 
to  a  part  of  the  plaintiff's  demand,  and  admit  the  residue. 
Thereupon  an  order  was  made,  directing  the  defendants  to 


400  ABBOTTS'  PRACTICE  EEPORTS. 

Meyers  a.   Trimble. 

satisfy  that  part  of  the  plaintiff' s  claim  which  was  so  admitted 
in  pursuance  of  section  244  of  the*  Code. 

This  order  being  served,  the  defendants  refused  to  comply 
therewith,  and  upon  a  motion  for  an  attachment  for  the  diso- 
bedience of  that  order,  a  further  order  was  made  that  an  at- 
tachment issue  to  bring  the  defendants  into  court  to  answer  for 
their  apparent  contempt  in  disobeying  the  former  order. 

From  the  order  that  an  attachment  issue  (as  stated  in  the  re- 
spondent's points)  the  present  appeal  is  taken. 

No  points  are  submitted  by  the  appellant,  and  we  are  not 
therefore  apprised  of  the  grounds  of  his  objection  to  the  order. 
All  that  appeared  before  the  court,  when  the  ordei*  appealed 
from  was  made,  was  that  the  order  for  the  payment  of  the  sum 
admitted  to  be  due,  was  served  upon  each  of  the  defendants 
personally,  and  that  they  refused  to  obey  it.  No  excuse  was 
offered  for  such  disobedience;  the  propriety  of  the  original 
order  is  not  open  to  question  on  this  appeal ;  and  the  only 
question  that  occurs  to  me  is  this :  Did  the  legislature,  when 
they  provided  that  such  an  order  might  be  enforced  by  the 
court  as  it  enforces  a  provisional  remedy,  mean  that  the  court 
might  issue  an  attachment  against  the  persons  of  the  defend- 
ants, and  require  them  to  answer  for  the  apparent  contempt, 
and  if  upon  such  appearance  the  apparent  contempt  was 
neither  disproved  nor  excused,  may  the  court  proceed  to  fine 
and  imprison  as  in  other  cases  of  contempt  ? 

I  have  heretofore  in  Merritt  v.  Thompson,*  in  this  court,  at 
the  January  General  Term,  (1855)  and  in  a  recent  case  at  the 
April  Special  Term,  Quintard  v.  Secor,f  expressed  my  view  at 
some  length  regarding  the  consistency  of  the  power  given  to 
the  court  by  the  section  of  the  Code  under  consideration,  with 
our  statutes  abolishing  imprisonment  for  debt.  Although  if 
we  were  impelled  by  our  views  of  the  proper  construction  of 
this  section  to  say  that  it  provides  for  the  imprisonment  of  a 
debtor,  who,  admitting  that  he  owes  money,  is  in  fact  unable 
to  pay  it,  we  should  be  bound  to  add  that  the  legislature  who 
had  abolished  imprisonment  for  debt,  were  entirely  competent 
to  restore  it,  in  such  cases,  and  with  such  limitations  and  qual- 

*  Ante,  223.  t  Ante,  393. 


NEW-YORK.  401 


Meyers  a.  Trimble. 


ifications  as  they  thought  proper ;  yet,  on  the  other  hand,  we 
ought  to  give  a  construction,  to  the  section  in  harmony  with 
the  general  course  of  legislation  in  this  state  for  more  than 
thirty  years,  and  with  the  spirit  which  still  characterizes  our 
laws,  and  especially  with  a  cautious  regard  for  the  liberty  of 
the  citizen,  if  such  construction  will  satisfy  the  requirements 
of  the  section  under  consideration.  And  in  this  view  I  have 
suggested  in  the  above  cases,  that  if  it  appear  that  the  debtor 
is  unable  to  pay  the  sum  ordered  to  be  paid,  that  may  be 
deemed  a  sufficient  excuse  when  he  appears  to  answer  for  ap- 
parent contumacy. 

Courts  will  not  adjudge  a  defendant  in  contempt  for  not  doing  / 
an  impossibility,  nor  for  not  doing  what  it  is  not  in  his  power  to 
do,  unless  he  has  voluntarily  disabled  himself  to  do  the  act, 
and  the  creation  of  the  disability  was  itself  a  contumacious 
act.  There  is  therefore  nothing  in  the  objection  that  the  order 
appealed  from  is  in  conflict  with  our  non-imprisonment  laws, 
or  the  general  design  of  the  legislature  to  protect  an  honest  but 
insolvent  debtor  from  being  restrained  of  his  personal  liberty. 

,The  question,  however,  still  remains  whether  by  the  terms 
"  may  enforce  the  order  as  the  court  enforces  a  provisional 
remedy"  was  meant  that  the  court  might  punish  disobedience 
as  a  contempt.  There  appears  to  rne  no  room  to  give  it  any 
other  meaning. 

How  do  the  courts  enforce  a  "  provisional  remedy  ?"  Under 
the  Code,  provisional  remedies  are  described  in  five  chapters. 
1st.  "  Arrest  and  Bail."  This  remedy  when  granted,  enforces 
itself  as  against  the  defendant.  The  very  order  of  arrest  goes 
into  the  hands  of  a  ministerial  officer  for  immediate  execution. 
It  requires  no  supplemental  proceedings  to  enforce  it,  unless 
the  sheriff  refuses  to  return  the  writ  or  mandate,  and  if  he  do, 
he  may  clearly  be  ordered  to  make  such  return  and  be  attached 
for  a  contempt  in  disobeying  the  order.  2d.  "  Claim  and  De- 
livery." To  this  the  same  remark  in  substance  applies,  and  an 
attachment  may  be  granted  to  compel  the  sheriff  to  perform 
his  duty.  3d.  "Injunction."  In  respect  to  which  the  appro- 
priate mode  of  compelling  obedience  is  by  attachment  for  a 
contempt  in  disregarding  it.  4th.  "  Attachment'.'  against 
property  of  foreign  corporations,  non-resident  or  absconding 


402  ABBOTTS'  PRACTICE  REPORTS. 

Meyers  a.  Trimble. 

debtors.  The  remarks  made  regarding  arrest  and  bail,  are  ap- 
plicable to  this  also.  The  execution  of  the  attachment  by  the 
sheriff  enforces  this  remedy,  unless  the  sheriff  by  some  neglect 
of  his  own  duty,  subjects  himself  to  a  proceeding  for  contempt. 
5th.  "  Appointment  of  Receivers."  "  Power  to  order  the  de- 
livery of  money  or  property  in  the  defendant's  possession,  to 
the  party  claiming  it,  or  to  bring  it  into  court,"  in  respect  to 
both  of  which  the  power  of  the  court  to  enforce  its  order  by 
process  for  a  contempt,  is  unquestionable,  and  in  respect  to  the 
order  for  the  delivery  of  property,  the  terms  are  explicit  that 
the  court  may  not  only  punish  disobedience  as  a  contempt,  but 
may  direct  the  sheriff'  to  take  the  money  or  property,  and  de- 
posit or  deliver  it  in  conformity  with  the  original  direction. 

Now,  in  respect  to  all  these  remedies,  the  well-known  power 
of  the  court  to  punish  a  disobedience  of  its  orders  as  a  con- 
tempt, is  an  important  mode  of  making  them  effectual,  and  in 
some  of  them  the  remedy  itself  would  be  wholly  ineffectual 
and  inoperative  without  such  power,  and  this  power  is  fully 
given  and  regulated  by  the  Revised  Statutes,  and  is  preserved 
in  force  by  section  471  of  the  Code. 

I  do  not  therefore  hesitate  in  concluding  that  the  language 
above  referred  to,  means  that  the  court  may  compel  obedience 
to  its  order  in  the  mode  pursued  in  the  present  case.  Indeed, 
had  the  provision  in  question  stopped  with  a  warrant  to  the 
.court  to  order  the  defendant  to  satisfy  the  part  of  the  claim 
.admitted,  and  had  not  prescribed  the  mode  of  enforcing  obe- 
dience, it  would  have  been  no  idle  claim  that  the  provisions 
of  the  Revised  Statutes  (2  Rev.  Stats.,  534  and  536,  §  1  and  §  4, 
§  5  and  onward)  would  have  been  distinctly  applicable  to  a 
•case  of  disobedience  to  such  an  order.  On  the  contrary,  the 
remedy  by  precept  or  attachment  for  a  contempt  would  seem 
$K>t  only  authorized,  but  in  all  respects  appropriate. 

In  my  opinion  the  order  should  be  affirmed. 

Order  affirmed. 


NEW-YOKK.  403 


Keteltas  a.  Myers. 


KETELTAS  a.  MYERS.  / 

New  York  Common  Pleas  ;  General  Term,  June,  1854. 
Again,  March,  1855. 

PLEADING. — COMPLAINT  ON  PROMISSORY  NOTE. 

It  seems  that  where  a  decision  of  the  general  term  affirming  a  decision  at  special 
term  sustaining  a  demurrer  is  final,  no  leave  to  plead  over  being  given,  appeal 
should  be  taken  directly  from  that  decision  as  a  judgment. 

If,  however,  it  be  necessary  as  matter  of  form  to  wait  until  judgment  is  perfected  in 
the  action,  and  then  to  appeal  from  that  judgment  to  the  general  term;  before 
going  to  the  Court  of  Appeals,  the  court  will  not  as  a  general  rule,  permit  appel- 
lant to  argue  on  the  second  appeal  the  same  questions  which  were  discussed  upon 
the  first. 

A  complaint  upon  a  promissory  note  which  does  not  aver  that  the  amount  claimed 
therein  is  due  from  the  adverse  party,  and  that  it  is  due  on  the  note,  is  not  con- 
formable to  the  requisites  stated  in  §  162  of  the  Code.  It  is  not  sufficient  to  aver 
that  the  amount  is  due  to  the  plaintiff. 

If  the  complaint  is  not  drawn  under  that  section,  the  pleader  must  aver  a  breach  so 
as  to  show  the  default  of  the  defendant. 

I.  June,  1854.  Appeal  from  judgment  at  special  term,  sus- 
taining demurrer  to  complaint. 

The  complaint  in  this  action  averred  that  the  defendant  "  for 
value  received,  made  and  delivered  to  the  plaintiff  his  promis- 
sory note,  payable  to  the  order  of  plaintiff  and  indorsed  by 
him ;"  and  set  out  a  copy  of  the  note  which  was  for  the  sum 
of  two  hundred  and  four  dollars,  sixty-seven  cents.  The  com- 
plaint then  concluded  with  the  following  allegation,  succeeded 
by  the  usual  demand  of  judgment. 

"  That  there  is  due  and  owing  the  said  plaintiff  the  said  sum 
of  two  hundred  and  four  dollars,  sixty-seven  cents  with  interest 
thereon,"  &c. 

The  defendant  demurred  to  the  complaint,  for  want  of  state- 
ment of  facts  sufficient  to  constitute  a  cause  of  action. 

On  the  hearing  of  the  demurrer  at  special  term,  judgment 
was  ordered,  in  December,  1853,  for  the  defendant,  with  leave 
to  the  plaintiff  to  amend  within  three  months ;  the  following 
opinion  being  rendered. 

DALY,  J. — The  plaintiff  avers  that  the  note  was  made  and 
delivered  to  him  by  the  defendant.  This  is  sufficient  to  show 


404  ABBOTTS'  PRACTICE  REPORTS. 

Keteltas  a.  Myers. 

title  in  the  plaintiff,  and  a  formal  allegation  that  he  is  the 
owner  or  holder  is  unnecessary.  There  is  no  averment  of  a 
transfer  of  the  note  by  indorsement.  The  complaint  states 
that  the  plaintiff  indorsed  the  note  without  setting  forth  any- 
thing further.  This  is  a  statement  of  an  indorsement  in  blank 
without  alleging  a  delivery,  which  amounts  to  nothing.  The 
complaint  is,  however,  in  other  respects  defective,  and  the  de- 
murrer is  well  taken.  The  plaintiff  was  at  liberty,  the  note 
being  an  instrument  for  the  payment  of  money,  to  declare  in 
the  manner  pointed  out  by  the  Code  or  in  any  other  manner, 
if  he  sets  forth  sufficient  to  show  that  he  had  a  good  cause  of 
action.  If  he  frames  his  complaint  in  conformity  to  the  Code, 
he  must,  in  addition  to  giving  a  copy  of  the  note,  allege  that 
there  is  due  from  the  defendant  on  the  note  a  certain  sum, 
specifying  it,  or  if  he  adopts  a  different  mode  of  declaring,  it 
must  appear  not  only  that  the  defendant  entered  into  the  contract, 
but  that  it  remained  unperformed  when  the  action  was  brought. 
He  must  allege  a  breach,  either  in  the  old  form  that  the  de- 
fendant neglected  and  refused  to  pay  the  note  ;  (1  Chitty,  365, 
375),  or  at  least  that  it  remains  due  and  unpaid  (3  Maule.  & 
/&,  150).  After  alleging  the  making  of  the  note  by  the  de- 
fendant, and  giving  a  copy  of  it,  the  complaint  states  that 
there  is  due  and  owing  to  the  plaintiff  the  said  sum  of  two  hun- 
dred and  four  dollars  and  sixty-seven  cents,  the  amount  which 
it  appears  by  the  note  as  set  forth,  the  defendant  promised  to 
pay.  The  words  "  the  said  sum"  do  not,  because  the  amount 
is  the  same  with  that  stated  in  the  body  of  the  note,  necessarily 
denote  that  the  note  remains  due  and  unpaid,  or  that  that  sum 
is  due  and  owing  upon  the  note.  For  all  that  appears  in  the 
complaint,  it  might  refer  to  some  other  sum  due  and  owing  to 
the  plaintiff.  There  might  be  another  note  for  the  same 
amount  to  which  it  would  be  as  applicable  as  the  note  de- 
clared on.  In  the  present  liberal  mode  of  regarding  pleading, 
it  is  not  usual  to  insist  upon  great  technical  nicety  in  setting 
out  a  cause  of  action,  but  reasonable  precision  of  language  is 
essential  under  any  form  of  pleading,  and  I  should  feel  un- 
willing to  admit  by  upholding  the  present  complaint,  that  a 
complaint  so  framed  would  be  a  proper  precedent  hereafter. 
It  must  therefore  be  amended  by  averring  either  in  accordance 
witn  the  Code,  that  the  amount  specified  is  due  and  owing  by 


NEW-YORK.  405 


Keteltas  a.  Myers. 


the  defendant  on  the  note,  or  else  by  inserting  a  general  aver- 
ment that  the  note  remains  due  and  unpaid. 

From  the  judgment  of  the  special  term,  the  plaintiff  appeal- 
ed to  the  general  term. 

C.  B.  Smith  for  appellant. 
C.  N.  Potter  for  respondent. 

BY  THE  COURT. — WOODRUFF,  J. — The  object  of  the  Code  of 
Procedure  was  to  simplify  the  rules  of  pleading  by  practically 
dispensing  with  technical  rules  and  forms,  and  useless  ver- 
biage, and  to  introduce  a  system  in  which  it  should  be  only 
necessary  to  state  the  substantial  matter  of  complaint.  But 
unless  it  has  been  done  by  section  162,  the  Code  nowhere  dis- 
penses with  a  statement  of  the  facts  which,  upon  the  trial  it  is 
necessary  for  a  plaintiff  to  prove,  in  order  to  make  out  a  cause 
of  action.  Liberality  and  freedom,  as  well  as  brevity  and 
conciseness,  are  allowable ;  but  looseness  and  uncertainty  are 
nowhere  sanctioned. 

First,  then,  it  was  necessary  before  the  Code,  in  declaring 
on  a  promissory  note  against  the  maker,  that  the  plaintiff 
should  aver — the  making  of  the  note,  the  promise  contained 
therein  or  implied  thereby,  the  facts  which  constitute  the 
plaintiff  the  holder,  promisee,  or  person  entitled  to  enforce  the 
promise — and  the  breach  of  promise  contained  in  or  implied 
from  the  making  of  the  note.  These  were  all  matters  of  sub- 
stance, and  indispensable  to  a  good  declaration,  and  such 
matters  are  not  dispensed  with  by  the  Code  except  so  far  as 
section  162  has  introduced  a  new  practice. 

Tested  by  these  rules,  the  complaint  in  this  case  appears  to 
me  defective.  It  consists  of  an  averment  that  the  defendant 
made  and  delivered  to  the  plaintiff  the  promissory  note,  of 
which  a  copy  is  set  forth,  and  that  it  is  payable  to  the  order 
of  the  plaintiff,  and  indorsed  by  him ;  "  that  there  is  due  and 
owing  the  said  plaintiff  the  said  sum  of  $204.67,  with  interest 
from  the  second  day  of  September."  The  making  by  the  de- 
fendant is  averred.  The  delivery  to  the  plaintiff,  payable  to 
his  order,  is  doubtless  a  sufficient  averment  of  facts,  constitu- 
ting the  plaintiff  the  holder,  arid  entitling  him  to  enforce  the 
cause  of  action,  if  any.  In  conformity  with  modern  decisions, 


406  ABBOTTS'  PRACTICE  REPORTS. 

Keteltas  a.  Myers. 

it  may  be  said  that  an  averment  of  the  making  and  delivery  of 
the  writing,  and  giving  its  very  terms,  to  wit :  "  I  promise  to 
pay,"  &c.,  is  a  sufficient  averment  of  the  promise  by  the  de- 
fendant, though  it  was  formerly  held  otherwise.  (See  Bac. 
Abr.  Tit.  Assumpsit,  F. ;  Morris  v.  Norfolk,  1  Taunt.,  217 ; 
Mountford  v.  Horton,  2  New  J?.,  62 ;)  and  cases  cited  in  the 
note.  The  only  remaining  requisite  is  the  allegation  of  the 
breach  of  promise.  This  need  not  be  averred  in  any  particu- 
lar form,  but  it  must  be  in  such  form  that  it  charges  default 
of  performance  of  the  promise,  and  charges  that  default  upon 
the  defendant ;  and  in  such  wise  that  it  shows  default  in  the 
defendant  as  the  ground  upon  which  damages  are  claimed, 
and  that  it  may  be  met  by  a  distinct  counter  allegation,  so  as 
to  create  a  material  issue;  as  by  an  averment  that  the  de- 
fendant hath  not  paid  the  sum  mentioned  in  said  note.  And 
in  general  as  stated  by  Chitty,  (1  Chit.  PI.,  325),  the  breach 
should  be  assigned  in  the  words  of  the  contract,  though  it  is 
sufficient  to  assign  the  breach  in  words  containing  the  sense 
and  substance  of  the  contract.  The  action  is  not  for  the 
making  of  the  promise,  but  for  the  breach  of  it ;  and  if  that  be 
not  avowed,  it  does  not  appear  that  the  plaintiff  has  any  cause 
of  complaint.  In  an  action  for  the  breach  of  a  contract  the 
rule  is  the  same.  Now  in  this  case,  it  is  not  averred  that  the 
defendant  has  not  paid,  or  has  not  performed  his  promise,  in 
any  form  ;  nor  even  that  the  money  mentioned  in  the  note  has 
not  been  paid,  or  that  it  remains  unpaid.  The  pleader  says 
that  the  sum  is  due  and  owing  to  the  plaintiff.  This  is  the 
statement  of  a  mere  legal  inference  from  a  breach  which  is 
not  averred  at  all.  But  even  this  is  not  charged  upon  the 
defendant.  He  does  not  aver  that  the  said  sum  is  due  and 
owing  to  the  plaintiff  from  the  defendant.  To  warrant  the 
legal  inference  that  the  money  is  due  and  owing,  it  is  neces- 
sary to  aver  the  promise  and  the  breach  of  it  by  the  defend- 
*ant,  for  without  both  of  these,  no  such  inference  arises.  The 
plaintiffs  counsel  insisted  on  the  argument  that  the  possession 
of  the  note  and  its  production  was  sufficient  to  raise  the  impli- 
cation that  it  was  not  paid.  That  may  be  conceded,  but  that 
only  goes  to  the  mode  in  which  the  non-payment  is  to  be  proved, 
and  not  to  show  that  an  averment  of  non-payment  is  unneces- 
sary. A  plaintiff  must  aver  the  facts  essential  to  his  right  of 


NBW-YOEK.  407 


Keteltas  a.  Myers. 


recovery ;  the  mode  of  proving  those  facts  is  a  different  matter. 
I  think  the  plaintiff  here  has  failed  to  put  the  defendant  in 
default  by  an  averment  of  any  breach  of  contract,  or  any  facts 
amounting  to  such  a  breach,  and,  therefore,  that  the  demurrer 
to  the  complaint  was  well  taken,  unless  his  complaint  can  be 
sustained  by  section  162  of  the  Code. 

Second.  By  section  162  it  is  provided  that  in  an  action 
founded  upon  an  instrument  for  the  payment  of  money  only, 
it  shall  be  sufficient  for  a  party  to  give  a  copy  of  the  instru- 
ment, and  to  state  that  there  is  due  to  him  thereon  from  the 
adverse  party  a  specific  sum,  which  he  claims.  I  agree  with 
the  opinion  given  at  special  term,  that  if  a  plaintiff  seeks  to 
avail  himself  of  the  privilege  given  by  this  section,  he  must 
conform  to  its  requirements ;  and  he  cannot  be  allowed  to  say 
that  the  legislature  have  relaxed  or  dispensed  with  the  former 
mode  of  declaring  on  a  written  instrument  and  given  a  substi- 
tute, and  now  the  court  may  dispense  with  compliance  with 
the  rules  required  in .  the  substitute  itself.  The  sum  claimed 
is  neither  alleged  to  be  due  on  the  note,  nor  to  be  due  from 
the  defendant. 

The  defects  in  this  complaint  are  easily  amended.  The 
court  would  not,  I  think,  have  hesitated  to  allow  an  amend- 
ment even  after  this  demurrer  was  interposed,  without  costs. 
The  court  have  no  disposition  to  withhold  indulgence,  or  en- 
courage objections  that  are  trifling  or  unsubstantial ;  but  there 
must  be  some  rules  of  pleading  and  practice,  and  if  so,  they 
must  be  maintained.  I  thi-nk  the  order  sustaining  the  demur- 
rer and  ordering  judgment  for  the  defendant  should  be  affirmed. 

Order  affirmed. 

II.  March,  1855. — The  plaintiff  having  declined  to  accept 
the  leave  of  amendment  granted  him,  judgment  was  entered 
against  him  in  the  action,  at  special  term,  December  9,  1854. 
From  this  judgment  he  again  appealed  to  the  general  term. 

BY  THE  COURT. — INGRAHAM,  F.  J. — The  present  case  comes 
before  us  on  an  appeal  from  a  judgment  entered  on  a  decision 
made  upon  a  demurrer  to  the  complaint. 

The  case  was  first  heard  at  special  term,  and  the  demurrer 


408  ABBOTTS'  PKACTICE  REPORTS. 

Keteltas  a.  Myers. 

was  sustained.  From  the  order  there  made  the  plaintiff  ap- 
pealed to  the  general  term,  under  section  349  of  the  Code,  sub- 
division 2,  where  the  order  below  was  affirmed.  The  plaintiff 
declined  to  accept  the  leave  granted  to  amend  his  complaint, 
and  judgment  was  thereupon  entered  up  for  the  defendant. 
The  plaintiff  has  again  appealed  to  the  general  term  from  the 
judgment  rendered. 

I.  It  may  be  doubted  whether  there  was  any  propriety  in 
this  appeal.     "When  the  case  was  heard  and  decided  at  special 
term,  the  plaintiff  was  allowed  three  months  to  amend  his 
complaint.     That  was  in  December,  1853.     He  refused  so  to 
do,  and  in  February,  1854,  the  general  term  affirmed  the  order 
appealed  from,  but  no  further  time  was  allowed  to  amend. 

In  Reynolds  v.  Freeman,  (4  Sand.  8.  C.  7?.,  702),  it  was  held 
that  in  cases  where  no  right  to  amend  or  plead  over  is  given, 
but  the  judgment  is  final,  the  appeal  should  be  from  that  deci- 
sion as  a  judgment.  The  time  for  amending  had  expired  long 
before  the  decision  and  probably  before  the  case  was  argued 
at  general  term,  and  as  the  plaintiff  even  after  that  decision 
declined  to  amend  his  complaint,  the  principle  of  the  case 
cited  may  be  applied  here,  so  as  to  require  the  appeal  to  be 
from  that  judgment  which  followed  the  decision  of  the  gene- 
ral term. 

II.  But  whether  or  not  an  appeal  after  the  entry  of  judg- 
ment is  necessary  to  be  made  to  the  general  term  in  such  cases 
before  going  to  the  Court  of  Appeals,  we  do  not  permit  an 
appellant  to  argue  a  second  time  on  appealing  from  the  judg- 
ment the  same  questions  which  were  argued  previously  on  an 
appeal  from  an  order  sustaining  a  demurrer.     If  it  is  thought 
necessary  that  an  appeal  should  be  made  from  a  judgment  ren- 
dered on  demurrer  in  favor  of  a  party  demurring,  after  it  has 
once  been  reviewed  on  the  order  made  at  special  term,  sustain- 
ing the  demurrer,  the  decision  so  made  in  the  first  instance  at 
general  term,  and  the  opinion  therein  delivered,  must  be  taken 
as  the  decision  and  opinion  of  the  court  when  the  same  ques- 
tion comes  again  before  the  general  term  on  the  second  appeal, 
and  no  new  argument  will  be  allowed. 

In  the  present  case  the  rule  would  have  been  enforced,  but 
the  counsel  for  the  appellant  suggested  that  recent  decisions  of 


NEW-YOKE:.  409 


Keteltas  a.  Myers. 


the  Court  of  Appeals  might  be  applicable  to  this  case ;  and 
with  a  view  of  examining  these  cases,  a  further  argument  was 
permitted. 

III.  My  brethren  have  both  delivered  opinions  in  favor  of 
the  defendant  on  this  demurrer,  and  when  the  case  was  before 
them  on  appeal  from  the  order  originally  made,  they  concurred 
in  the  decision  then  made.  For  the  reasons  of  that  decision  I 
refer  to  their  opinions  annexed  to  the  papers  now  submitted. 

It  is  very  clear  that  the  complaint  cannot  be  said  to  come 
within  the  provisions  of  §  162  of  the  Code,  because  it  does  not 
state  that  the  money  claimed  is  due  from  the  defendant,  nor 
that  it  is  due  on  the  note,  a  copy  of  which  is  to  be  inserted  in 
the  complaint.  The  words  of  that  section  are,  "  and  to  state 
that  there  is  due  to  him  (the  plaintiff)  thereon  from  the  adverse 
party,"  &c. 

The  words  of  the  complaint  are,  that  there  is  due  and  owing 
to  the  plaintiff  the  said  sum,  <fcc.,  not  averring  from  whom  it 
is  due,  or  on  what  the  money  is  claimed. 

IY.  "Whether  the  pleading  is  good  or  not  must  therefore  t>e 
decided  by  the  rules  generally  applicable  to  pleadings,  irre- 
spective of  the  mode  prescribed  in  §  162. 

The  objections  made  to  this  complaint  were — 

1.  That  the  plaintiff  does  not  aver  himself  to  be  the  holder 
or  owner  of  the  note. 

2.  That  it  does  not  appear  and  is  not  stated  that  any  part 
thereof  remains  unpaid. 

3.  That  it  is  not  stated  that  any  sum  is  due  or  owing  upon 
it. 

4.  That  it  appears  the  note  has  been  indorsed  by  the  plain- 
tiff, and  that  the  property  of  the  note  therefore  is  not  in  him. 

In  the  opinions  heretofore  delivered,  both  of  my  brethren 
agreed  in  holding  that  no  breach  was  averred  in  the  complaint, 
and  that  it  was  therefore  defective. 

It  is  not  now  pretended  that  there  is  any  formal  breach  con- 
tained in  the  complaint.  The  averment  that  the  said  sum  of 
money  (being  the  same  in  amount  as  the  maker  of  the  note 
promises  to  pay)  is  due  to  the  plaintiff  cannot  be  considered 
as  either  averring  that  the  money  secured  by  the  note  is  due 


410  ABBOTTS'  PEACTICE  REPORTS. 

Keteltas  a.  Myers. 

or  that  the  maker  of  the  note  is  the  party  who  owes  the  plain- 
tiff. 

Suppose  the  clause  had  been,  "  that  a  sum  of  money  equal 
to  the  amount  due  upon  the  note  was  now  due  and  owing,"  no 
one  would  pretend  that  to  be  an  averment  that  the  note  was 
still  unpaid,  or  that  the  maker  of  the  note  was  indebted  thereon 
to  the  plaintiff;  and  yet  the  meaning  of  the  clause  in  the  com- 
plaint does  not  vary  materially  from  the  form  above  given. 

It  is  said,  however,  no  express  breach  is  necessary.  This  is 
conceded  if  the  complaint  had  been  drawn  under  §162,  but 
even  that  form  has  an  averment  which  in  fact  amounts  to  the 
same  thing.  As  this  complaint  does  not  comply  with  the 
requisites  of  that  section,  it  becomes  necessary  to  inquire 
whether  an  averment  of  a  breach  in  not  paying  the  note  can 
be  dispensed  with  in  an  ordinary  complaint. 

It  is  not  necessary  for  me  to  repeat  what  has  been  said  by 
my  brethren  before,  to  show  that  according  to  former  rules  of 
pleading  before  the  Code,  the  complaint  was  defective. 

We  have  now  been  referred  to  forms  cited  from  3  Chitty's 
Pleadings,  1411,  &c.,  of  the  edition  of  1844,  to  show  that  no 
breach  was  necessary  in  an  action  upon  a  note. 

It  may  be  doubted  whether  it  was  not  intended  in  those 
forms  to  add  the  general  breach  which  follows  in  the  next 
division  under  the  common  counts.  It  certainly  seems  to  have 
been  so  intended  when  a  count  on  a  note  and  the  common 
counts  were  united  together,  as  a  form  is  given  in  such  a  case. 

But  whether  it  was  or  not,  it  is  sufficient  to  say  that  these 
forms  were  adopted  by  the  judges  as  short  forms  of  pleading 
under  the  provisions  of  a  statute  which  authorized  the  dispens- 
ing with  many  things  which  otherwise  were  necessary. 

It  was  in  fact  a  statutory  form  of  declaring  on  a  note,  simi- 
lar to  that  adopted  in  the  Code,  and  which  was  of  no  authority 
where  the  statute  was  not  in  force.  That  form  also  contains 
an  averment  that  the  time  of  payment  had  elapsed,  which  is 
wanting  in  the  present  complaint. 

We  are  also  referred  to  the  case  of  Allen  v.  Patterson, 
(3  Seld.,  476),  as  authority  to  show  that  no  breach  is  necessary 
to  be  averred  in  the  complaint.  That  case  is  no  authority  for 
such  a  proposition.  The  action  was  for  goods  sold  and  deli- 


NEW-YOKK.  411 


Keteltas  a.  Myers. 


vered.  The  complaint  charged  that  the  defendant  was  indebted 
for  goods  sold  and  delivered  by  the  plaintiff  to  the  defendant 
in  a  specified  sum,  and  that  there  was  due  and  owing  to  the 
plaintiff  from  the  defendant  a  specified  amount.  The  objec- 
tions taken  to  the  complaint  were  two  :  first,  as  to  the  form  in 
stating  indebtedness  as  the  ground  of  action,  and  second,  that 
the  allegation  that  "  there  was  due  to  the  plaintiff  from  the 
defendant,"  &c.,  was  not  a  sufficient  averment  of  a  breach. 

The  Court  of  Appeals  held  that  the  first  objection  was  unte- 
nable, because  in  stating  what  the  indebtedness  was  for,  the 
pleader  had  also  stated  all  the  facts  necessary  to  constitute  the 
cause  of  action  as  to  the  sale  and  delivery  of  the  goods  ;  and 
as  to  the  second  objection,  that  the  allegation  that  the  amount 
was  due  from  the  defendant  to  the  plaintiff,  was  an  averment 
that  the  money  sought  to  be  recovered  had  become  payable, 
or  the  time  when  it  was  promised  to  be  paid  had  elapsed. 
Judge  Jewett  no  where  intimates  that  an  allegation  that  the 
debt  had  become  payable  was  unnecessary.  On  the  contrary, 
the  whole  of  his  argument  was  to  show  that  there  was  a  breach 
of  the  contract  averred,  and  that  the  term  due  was  equivalent 
to  "  payable." 

In  the  complaint  now  under  consideration  there  is  no  allega- 
tion that  the  note  has  become  payable,  or  that  it  is  due,  nor 
anything  to  show  the  defendant  in  default,  except  an  allega- 
tion that  a  sum  of  money  the  same  as  that  secured  by  the  face 
of  the  note  is  due  to  the  plaintiff — from  whom  or  for  what  pur- 
pose does  not  appear.  A  general  denial  of  all  the  facts  stated 
in  the  complaint  would  not  raise  an  issue  as  to  whether  the 
note  had  become  payable  or  not,  because  there  is  no  such  alle- 
gation there.  A  denial  of  the  latter  allegation,  that  the  sum 
of  $204.67  was  due  to  the  plaintiff,  would  be  immaterial,  be- 
cause it  would  be  an  issue  upon  a  matter  not  connected  with 
the  note,  the  subject  of  the  controversy.  The  defect  has  pro- 
bably arisen  from  intending  to  use  the  statutory  form,  and  yet 
departing  from  that  form,  brief  as  it  is. 

I  am  free  to  admit  that  these  objections  are  strictly  techni- 
cal, and  that  under  the  present  system  of  pleading,  the  courts 
should  not  encourage  such  technicalities  any  farther  than  is 
necessary  for  the  due  and  orderly  administration  of  justice. 


412  ABBOTTS'  PKACTICE  REPORTS. 

Seymour  a.  Elmer. 

And  I  think  it  is  a  matter  unworthy  of  commendation  that  the 
counsel  on  both  sides  have  seen  fit  to  engage  in  this  long 
contest  on  points  totally  unnecessary  to  the  disposition  of  the 
merits  of  the  controversy.  The  defendant  might  have  made 
any  defence  that  he  had  to  the  note  on  which  he  was  sued,  by 
setting  the  same  up  in  his  answer  notwithstanding  the  techni- 
cal objections  which  he  has  made  to  the  complaint,  and  the 
plaintiff  after  the  demurrer  was  put  in  would  have  been 
allowed  to  amend  the  same  without  costs,  and  he  was  so  in- 
formed in  one  of  the  opinions  heretofore  delivered.  When 
this  case  was  formerly  before  the  general  term,  I  was  disposed 
to  disregard  these  defects  as  being  merely  matters  of  form,  and 
such  as  by  the  provisions  of  the  Code  might  be  disregarded  as 
not  causing  any  injury  or  prejudice  to  the  opposite  party, 
though  I  did  not  doubt  that  as  a  pleading  the  complaint  was 
defective,  and  the  court  then  so  decided. 

The  cases  now  cited,  do  not  in  any  degree  warrant  the  con- 
clusion that  in  an  action  on  a  promissory  note,  it  is  not  neces- 
sary in  the  complaint  to  show  the  defendant  default  as  to  pay- 
ment, and  even  the  short  statutory  form  provided  in  section 
162  of  the  Code,  contains  the  averment  of  a  breach  which  re- 
quires the  plaintiff  to  say  that  there  is  due  to  him  from  the  de- 
fendant on  the  note  the  amount  claimed.  If  the  pleader  had 
gone  thus  far,  it  would  have  been  sufficient.  Not  having 
done  so,  his  complaint  is  defective,  and  if  he  insists  upon  the 
decision  of  the  court  upon  this  question  rather  than  amend  his 
complaint  as  suggested  to  him  in  the  first  instance,  we  must  so 
hold,  however  much  we  may  dislike  to  encourage  such  objec- 
tions. 

The  judgment  must  be  affirmed. 


SEYMOUR  a.  ELMER. 

New  York  Common  Pleas  /   General  Term,  April,  1855. 
DEFAULT  IN  JUSTICE'S  COURT. — PROOF  OF  "MANIFEST  INJUSTICE." 

Defendant's  attorney  having  suffered  default  in  a  district  court  by  being  delayed  in 
arriving  at  court  by  circumstances  liable  to  occur  without  his  fault,  he  being  under 
the  misapprehension  that  no  defaults  were  taken  until  an  half  hour  after  the 
return  hour  of  the  summons  ;  held,  that  the  default  was  excusable. 


NEW-YORK.  413 


Seymour  a.  Elmer. 


The  only  witness  for  plaintiff  having  been  the  assignor  of  the  claim  sued  on,  an  affi- 
davit by  the  defendant  that  injustice  was  done  to  him  by  the  judgment  in  default, 
held,  under  certain  circumstances  sufficient  upon  that  point,  in  a  motion  to  open 
the  judgment. 

Application  to  open  a  judgment  of  a  district  court. 

The  plaintiff  sued  for  rent  as  assignee  of  the  lessor.  Suit 
was  brought  in  the  Justice's  court  of  the  4th  Judicial  District. 
It  appeared  from  the  return  of  the  justice  and  the  affidavits, 
that  upon  the  return  day  of  the  summons,  the  case  was  called 
very  soon  after  9  o'clock,  that  being  the  hour  named  in  the 
summons.  The  defendant  did  not  appear.  The  plaintiff  pro- 
ceeded, and  called  and  examined  his  only  witness,  the  assignor. 
The  justice  thereupon  gave  judgment  for  the  plaintiff. 

Soon  after  such  judgment  had  been  rendered,  and  it  being 
then  only  about  15  minutes  past  9,  the  defendant's  attorney 
arrived.  He,  supposing  that  it  was  the  practice  of  the  court 
to  take  no  defaults  until  half  an  hour  after  the  time  named  in  the 
summons,  had  been  detained  a  few  moments  upon  his  way  to 
the  court  by  meeting  a  client  and  conversing  with  him  respect- 
ing the  transaction  of  certain  of  his  legal  business  on  that  day. 
On  coming  into  court  at  about  quarter  past  nine,  he  informed 
the  justice  that  he  appeared  for  the  defendant.  The  plaintiff's 
attorney  meanwhile  had  procured  a  transcript  of  his  judgment 
from  the  clerk.  The  justice  informed  defendant's  attorney 
that  judgment  had  been  given,  but  that  he  would  open  the 
default  if  the  plaintiff's  attorney,  who  had  not  yet  left  the 
court  room,  would  consent.  Defendant's  attorney  then  ap- 
plied to  plaintiff's  attorney,  offering  to  make  an  affidavit  of 
merits  and  pay  the  costs  of  the  default ;  but  the  request  was 
refused.  The  justice  thereupon  declined  to  open  the  default. 

The  defendant  appealed. 

Thomas  S.  Somers  for  Appellant. 
Franklin  Brown  for  Respondent. 

WOODRUFF,  J. — The  absence  of  the  defendant's  counsel  at 
the  time  this  cause  was  called  for  trial,  arose  from  circum- 
stances liable  to  occur  without  any  fault  on  his  part,  and  the 


414  ABBOTTS'  PKACTICE  KEPOKTS. 


Seymour  a.  Elmer. 


misapprehension  under  which  he  was  delayed  for  fifteen 
minutes  after  the  hour  at  which  the  summons  was  returnable, 
considered  in  connection  with  the  fact  that  the  plaintiff's 
counsel  and  witness  were  still  in  court,  and  the  court  willing 
to  take  up  the  cause  if  the  plaintiff's  counsel  would  consent, 
seem  to  me  sufficiently  to  excuse  the  default. 

Upon  the  question  whether  manifest  injustice  has  been  done, 
the  case  is  not  quite  so  clear.  If  the  facts  sworn  to  by  the 
defendant  are  true,  then  injustice  is  manifestly  done  by  the 
judgment ;  and,  on  the  other  hand,  if  the  statements  of  the 
assignor  of  the  plaintiff  are  true,  the  judgment  is  just.  We 
have  heretofore  considered  that  where  it  appeared  by  the 
papers  that  the  plaintiff's  case  was  established  by  an  indiffer- 
ent witness,  and  nothing  appeared  on  the  part  of  the  defend- 
ant but  his  own  unsupported  oath,  where  he  could  not  himself 
be  a  witness  on  the  trial,  it  would  be  of  no  avail  to  order  a 
new  trial,  since  we  were  not  advised  that  the  result  of  a  new 
trial  could  be  other  than  the  result  of  the  first,  nor  in  such 
case  could  it  be  apparent  that  injustice  was  done.  In  this  case 
the  assignor  of  the  plaintiff  declares  himself  to  be  the  repre- 
sentative of  the  plaintiff  in  the  matter  of  the  suit.  It  is  not 
certain  but  the  assignor  may  prove  to  be  himself  incompetent, 
and  if  not,  his  testimony  in  the  relation  he  occupies  will  be 
received  with  caution,  and  if  examined,  the  defendant  himself 
will  be  a  competent  witness  to  the  same  matter.  Though  not 
without  some  hesitation,  I  have  come  to  the  conclusion  that  a 
new  trial  should  be  ordered  upon  terms.  The  defendant  must 
waive  any  claim  (if  any  he  have)  to  restitution  of  the  costs 
paid  on  appealing,  and  must  pay  the  respondent's  costs  on  appeal, 
and  the  parties  must  appear  before  the  justice  on  the  fifteenth 
day  of  May  next,  at  10  o'clock,  A.  M.,  and  proceed  with  the 
trial  at  that  time,  or  on  such  days  as  the  justice  of  the  district 
court  may  by  adjournment  appoint. 


NEW-YORK.  415 


Lowber  a.  Childs. 


LOWBER  a,  CHILDS. 

New  York  Common  Pleas  ;  General  Term,  April,  1855. 
MECHANIC'S  LIEN. — JOINDEK  OF  PARTIES. 

The  dismissal  of  a  proceeding  in  the  Marine  Court  instituted  under  the  mechanic's 
lien  law,  upon  the  ground  that  the  contractor  was  not  made  an  original  party 
thereto,  is  erroneous. 

The  Marine  Court  has  power  to  cause  the  contractor  to  be  made  a  party,  and  to  be 
brought  in  when  his  presence  is  necessary. 

Appeal  from  judgment  dismissing  proceedings  to  foreclose 
a  mechanic's  lien. 

The  plaintiff  Lowber  commenced  an  action  in  the  New 
York  Marine  Court  to  foreclose  a  mechanic's  lien.  His  notice 
of  lien  was  addressed  to  Winters  and  Childs.  Childs  was  the 
owner  of  the  premises  sought  to  be  charged ;  Winters  was  the 
contractor  engaged  in  building  ;  Lowber  was  a  material  man. 
Due  notice  to  close  the  lien  was  served  on  the  defendant  in 
the  notice,  Childs ;  but  none  was  served  on  Winters. 

On  the  return  day  Childs  appeared  by  his  attorney,  and  the 
notice  and  proof  of  service  upon  him  and  a  bill  of  particulars 
having  been  filed  by  the  plaintiff,  the  attorney  of  the  defend- 
ant Childs  moved  that  the  proceedings  on  the  part  of  the 
plaintiff  be  dismissed,  on  the  ground  that  the  contractor 
Winters  had  not  been  made  a  party  to  the  proceeding ;  that 
no  notice  or  process  had  been  served  upon  him  to  bring  him 
into  court. 

The  justice  thereupon  inquired  of  the  attorney  for  the 
plaintiff  if  he  wished  to  bring  said  Winters  into  court,  and 
make  him  a  party  to  the  proceeding ;  which,  the  justice  said, 
the  plaintiff  would  be  permitted  to  do  if  he  wished.  This 
offer  being  declined,  thereupon  on  motion  of  the  defendant's 
attorney,  the  justice  dismissed  the  proceedings  with  costs. 

The  plaintiff  appealed. 

Charles  E.  Nott  for  the  appellant,  contended  that  the  act 
(Laws  1851,  p.  953)  does  not  require  the  contractors  to  be 
made  a  party ;  that  the  case  of  Sullivan  a.  Decker  (1  E.  D. 
Smith's  R.,  699),  relied  on  by  the  respondent,  did  not  make 
the  contractor  a  necessary  party,  but  only  a  proper  party. 


416  ABBOTTS'  PKACTICE  REPORTS. 

Lowber  a.  Childs. 

£  Sanxay  for  respondent,  insisted  that  the  circumstances 
gave  no  ground  for  appeal ;  that  there  was  no  judgment,  but 
only  a  dismissal  of  a  preliminary  proceeding,  or  rather  a  re- 
fusal to  act ;  and  if  error,  it  could  only  be  corrected  by  man- 
damus or  certiorari.  That  the  case  was  not  before  the  justice, 
the  notice  being  wholly  insufficient;  but  if  it  was,  the  judg- 
ment was  correct ;  because  the  defendant  Winters  was  a  ne- 
cessary party,  and  the  Marine  Court,  he  urged,  is  vested  wTith 
no  equity  powers,  by  which  to  bring  him  into  court. 

WOODRUFF,  J. — The  opinions  given  by  this  court  in  Sullivan 
a.  Decker,  (1  E.  D.  Smith,  599),  do  not  warrant  the  judgment 
rendered  in  the  Marine  Court  in  this  action ;  and  the  decision 
in  Foster  a.  Skidmore  (75.,  719)  is,  so  far  as  this  court  is  con- 
cerned, conclusive  that  such  judgment  was  erroneous.  The 
plaintiff  had  taken  the  very  steps  which  the  statute  prescribed, 
and  the  court  thereby  obtained  jurisdiction  of  the  matter  and 
should  have  proceeded  therein. 

I  do  not  discover  any  defect  of  power  in  the  Marine  Court 
to  make  any  order  which  may  be  essential  to  carry  into  full 
execution  the  jurisdiction  which  the  statute  itself  has  conferred 
upon  them,  by  authorizing  the  proceedings  to  be  had  in  that 
court ;  and  in  this  respect  it  is  not  material  whether  the  fore- 
closure be  deemed  a  strictly  legal  or  an  equitable  proceeding. 
Besides,  section  64,  subdivision  15,  of  the  Code  of  procedure, 
makes  the  provisions  of  'the  code,  respecting  parties  to  actions, 
applicable  to  the  justice's  courts,  and  section  68  in  like  man- 
ner, makes  section  64  apply  to  the  Marine  Court.  Section 
121  of  the  Code,  in  terms  provides  that  when  a  complete  de- 
termination of  the  controversy  cannot  be  had  without  the  pre- 
sence of  other  parties  the  court  must  cause  them  to  be  brought 
in.  It  seems  to  me  that  in  this  the  Marine  Court  have  ample 
power  to  cause  a  contractor  to  be  summoned,  and  that  it 
should  have  been  done.  But  further,  it  appears  by  the  notice 
to  bring  the  lien  to  a  close,  that  the  contractor  was  made  a 
party  defendant,  and  if  one  defendant  only  had  been  served, 
still  the  proceedings  should  not  have  been  dismissed, — the  de- 
fendant might  have  been  brought  in,  as  in  cases  where  only 
one  of  two  defendants  is  served. 

The  judgment  must  be  reversed. 


NEW-YOKE.  417 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


NEW  YORK  AND  NEW  HAVEN  R.  R.  CO.  a.  SCHUYLERT  7-2,  f 
Supreme  Court,  First  District ;  Special  Term,  May,  lS55x    ^J^»  < 

r 

JOINDER  OF  PARTIES. — MULTIFARIOUS  COMPLAINT. 

A  bill  of  interpleader  can  only  be  filed  when  the  plaintiff  has  no  claim  adverse  or 
hostile  to  tb«  parties  defendant.  If  the  complaint  asks  for  relief  specifically 
against  the  defendants — further  than  to  require  the  defendants  to  interplead  with 
each  other — the  bill  is  not  one  of  interpleader,  or  in  the  nature  of  a  bill  of  inter- 
pleader. 

It  seems,  that  a  corporation  is  composed  of  the  aggregate  body  of  individual  corpo- 
rators united  under  the  charter,  and  is  in  no  sense  a  trustee  for  the  individual 
corporators. 

Suits  heretofore  known  aa  bills  of  peace  may  be  brought  to  avoid  multiplicity  of 
suits,  and  may  embrace  a  large  number  of  defendants.  But  such  suits  must  relate 
to  matters  of  the  same  nature,  having  a  connection  with  each  other,  and  in  which 
all  of  the  defendants  are  more  or  less  concerned,  though  their  rights  in  respect 
to  the  general  subject  of  the  case  may  be  different. 

Such  bill  must  have  for  its  foundation  some  issue  which  concerns  all  of  the  parties 
defendant — an  issue  with  which  each  defendant  is  connected,  so  as  to  give  the 
plaintiff  a  right  to  a  decree  as  to  each  one  in  respect  of  first  issue  and  common 
question. 

Where  there  had  been  a  fraudulent  over-issue  of  the  stock  of  a  corporation  be- 
yond the  amount  allowed  by  its  charter  by  the  act  of  its  duly  authorized  trans- 
fer agent,  and  a  part  of  such  stock  was  held  by  guilty  parties  with  knowledge  of 
the  fraud,  and  a  part  had  gone  into  the  hands  of  innocent  purchasers  for  value 
and  without  notice : 

Held,  that  a  bill  filed  by  the  corporation  against  all  of  the  holders  of  the  over-issue, 
asking  to  have  the  certificates  delivered  up  and  canceled,  would  not  lie,  and  that 
such  complaint  was  multifarious. 

Held,  further,  that  in  such  case  the  complaint  showed  on  its  face  that  the  corporation 
had  no  right  of  action  against  the  innocent  purchasers  of  the  false  stock,  but  was 
itself  liable  to  them  for  the  acts  of  its  transfer  agent  in  issuing  it 

Held,  that  as  to  the  parties  defendant  in  such  bill  when  such  had  purchased  at  dif- 
ferent times  from  different  persons  on  contracts  separate  and  distinct  from  each 
other,  there  was  no  common  issue  or  question  embracing  all  of  the  parties,  and  in 
which  each  was  interested,  and  in  which  all  were  concerned.  There  was  no  pri- 
vity of  contract  or  interest  between  them,  and  they  could  not  be  joined  in  one 
action. 

Whether  the  corporation  could  have  a  decree  against  the  guilty  parties  alone  for  a 
surrender  of  the  false  stock  ?  Query. 

It  teems,  that  a  bill  may  be  filed  against  the  whole  body  of  confederates  who  unite 
for  the  commission  of  an  act  in  violation  or  fraud  of  the  rights  of  the  plaintiff,  how- 
ever numerous  those  parties  may  be.  The  combination  to  defraud  unites  them  all 
together,  and  presents  an  issue  common  to  all ;  and  a  decree  may  reach  them  as  a 
body  and  each  one  personally — even  though  in  carrying  out  the  details  of  that 
common  object  each  one  may  have  performed  acts,  and  claimed  to  have  acquired 
right*,  personal  to  himself  and  independent  of  his  confederates. 


418  ABBOTTS'  PRACTICE  EEPORTS. 

New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 

Demurrer  to  a  complaint. 

This  action  was  brought  by  the  New  York  and  New  Haven 
Railroad  Company  against  three  hundred  and  twenty-four 
defendants,  for  the  purpose  of  settling  in  one  suit  the  numerous 
claims  and  questions  which  arose  out  of  extensive  frauds  com- 
mitted by  Robert  Schuyler,  the  former  president  of  the  corpo- 
ration, plaintiff.  One  of  the  defendants,  Cross,  demurred  to 
the  complaint. 

The  facts  involved,  and  the  substance  of  the  pleadings,  ap- 
pear in  the  opinion. 

Messrs.  Tracy,  Dodge,  Noyes,  Powers  and  Talmadge,  for 
plaintiffs. 

Messrs.  Cutting,  Foster  and  Thompson,  for  defendant  Cross. 

COWLES,  J. — The  defendant,  Cross,  demurs  to  the  complaint, 
and  on  grounds  which  raise  the  question  whether  this  suit  can 
be  sustained.  The  facts  set  forth  in  the  complaint  are  as  fol- 
lows. 

The  plaintiff  is  a  corporation,  owning  and  operating  a  rail- 
road extending  from  New  Haven  to  New  York.  The  capital 
authorized  by  the  charter  is  limited  to  $3,000,000,  represented 
by  30,000  shares  of  stock — all  of  the  shares  except  78  having 
been  issued,  and  the  capital  paid  in,  less  about  $700  on  the  78 
shares,  several  years  since.  Transfer  books  of  the  stock  were 
kept  at  the  city  of  New  York  and  two  other  places,  where 
transfers  of  the  stock  were  made,  and  certificates  issued  as  oc- 
casion required.  From  the  organization  of  the  company  in 
1846  to  the  third  of  Juty,  1854,  Robert  Schuyler  was  the  pre- 
sident and  transfer  agent  of  the  company,  having  his  station 
and  place  of  business  at  the  office  of  the  company  in  New 
York.  As  early  as  October,  1853,  he  commenced  a  series  of 
fraudulent  acts,  extending  over  the  whole  period  of  time  inter- 
mediate that  date  and  the  3d  of  July,  1854,  during  which  time 
unknown  to  the  plaintiff  he  issued  and  disposed  of  large  num- 
bers of  certificates  of  stock  of  the  company,  which  on  their 
face  purported  to  be  genuine,  were  executed  and  signed  in  the 
same  manner  as  genuine  certificates,  and  un  distinguish  able 
from  them,  but  which  in  fact  were  fraudulent  over-issues  for 
his  own  private  purposes.  Some  of  these  he  issued  to  a  firm 


419 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


of  which  he  was  a  member.  The  others  were  issued  to  divers 
other  persons. 

In  other  instances,  after  making  transfers  of  stock  for  other 
parties  on  the  books  of  the  company,  he  failed  to  cancel  the 
old  certificates  which  were  surrendered  for  that  purpose,  but 
fraudulently  re-issued  them  as  genuine  certificates  of  stock 
owned  by  himself. 

In  furtherance  of  his  designs  he  allowed  clerks  of  his  firm  to 
give  the  firm  a  false  credit  on  the  stock  ledger  of  the  railroad 
company,  by  which  it  was  made  ostensibly  to  appear  that  such 
firm  had  stock  to  their  credit  on  the  books  of.  the  company  to 
$1,000,000,  when  in  truth  it  owned  none. 

These  false  certificates,  purporting  to  be  genuine,  and  these 
originally  genuine  certificates,  which,  instead  of  being  cancel- 
ed, were  re-issued,  were  used  by  Robert  Schuyler,  in  his  own 
and  in  the  business  of  his  firm,  under  representations  that  they 
were  genuine,  chiefly  for  the  purpose  of  borrowing  money : 
were  sold  openly  in  the  market  as  genuine  stock  in  some 
instances,  and  have  passed  in  this  way  into  the  hands  of  the 
defendants,  the  present  holders. 

In  some  instances  this  over-issued  stock  has  become  commin- 
gled with  genuine,  by  having,  in  the  regular  course  of  busi- 
ness, been  transferred  and  incorporated  into  a  certificate  with 
the  genuine. 

The  whole  false  issue  amounts  to  near  $2,000,000.  Nine 
thousand  three  hundred  and  eighty-three  shares  now  stand  on 
the  books  of  the  railroad  company,  in  the  names  of  29  persons 
and  firms,  to  whom  it  had  been  transferred  by  the  firm  to 
which  Schuyler  belonged.  The  balance  of  such  over-issues 
have  gone  to  the  hands  of  266  other  persons  and  firms,  at  dif- 
ferent times,  in  different  amounts,  from  different  persons,  and 
many  of  these  holders  are  also  the  holders  of  genuine  stock. 

Intermediate  the  29th  of  June 'and  the  3d  of  July,  1854, 
Schuyler,  the  president  and  transfer  agent  of  the  company, 
being  sick,  Mr.  Worthen,  the  vice-president,  who  was  also  one 
of  the  directors,  undertook,  but  as  plaintiff  says,  without 
authority,  to  act  as  transfer  agent  in  the  place  of  Schuyler, 
and  unaware  of  Schuyler's  frauds,  transferred  4446  shares  of 


420  ABBOTTS'  PRACTICE  REPORTS. 

New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 

that  false  stock  for  21  different  persons  and  firms,  supposing 
the  certificates  he  received  and  transferred  to  be  genuine. 

Some  of  the  holders  of  this  over-issue,  as  the  complaint 
alleges,  took,  knowing  the  certificates  were  fictitious,  some 
with  reason  to  believe  so,  some  on  usurious  contracts,  many 
under  circumstances  which  should  have  put  them  on  inquiry, 
and  many  others  under  circumstances  and  upon  considerations 
unknown  to  the  plaintiffs. 

They  all  claim  rights  against  the  company,  some  that  they 
are  stockholders,  others  that  they  are  either  stockholders  or 
have  a  right  of  action  against  the  company  for  their  losses. 
Some  claim  damages  to  the  full  nominal  par  value  of  the  cer- 
tificates they  hold — others  for  the  money  they  have  actually 
advanced,  while  all  assert  a  claim  upon  the  company  in  some 
form. 

It  is  not  denied  that  some  of  these  fraudulently  issued  certi- 
ficates have  gone  into  the  hands  of  entirely  innocent  parties 
for  value. 

Several  of  the  defendants  have  sued  the  company ;  some 
suits  are  pending  in  this  court,  some  in  the  Superior  Court,  and 
others  in  the  Common  Pleas  of  this  city.  Other  suits  are 
threatened.  The  plaintiff  has  joined  in  this  suit  Robert  Schuy- 
ler and  all  the  alleged  owners  or  holders  of  this  over-issued 
stock  and  prays  that  the  certificates  may  be  decreed  illegal 
and  void,  and  be  surrendered  up  and  canceled.  That  until 
these  questions  are  all  settled  those  who  have  sued  be  stayed 
in  their  proceedings,  that  those  who  have  not,  be  enjoined 
from  suing,  that  the  suits  now  pending  be  consolidated  with 
this,  and  closes  with  the  usual  general  prayer  for  such  further 
or  other  relief  as  is  meet  and  proper. 

To  this  complaint  this  demurrer  is  interposed. 

From  the  above  examination  of  the  complaint,  it  is  seen 
that  the  holders  of  this  over-issued  stock,  (and  which,  for  dis- 
tinction, I  will  call  spurious  stock),  have  not  come  in  posses- 
sion of  it  under  a  uniform  state  of  facts. 

1.  There  is  the  firm  of  R.  &  G.  L.  Schuyler,  who,  or  whose 
assignees,  hold  by  title  derived  directly  from  R.  Schuyler 
himself,  a  member  of  the  firm  and  the  author  of  the  fraud. 
"Whether  the  firm  paid  value  for  it  does  not  appear. 


NEW-YORK.  421 


New  York  &  New  Haven  R.  R.  Co.  a,  Schuyler. 


2.  There  is  the  class  who  took  from  Schuyler  with  knowl- 
edge of  the  fraud,  or  have  taken  under  circumstances  which  it 
is  alleged  should  have  put  them  on  inquiry. 

3.  A  class  who  hold  by  title  based  on  usurious  contracts 
with  Schuyler. 

4.  Another  still  to  whom  the  stock  has  been  hypothecated 
as  security. 

5.  There  is  a  class  who  hold  certificates  originally  valid  and 
regularly  issued,  but  which  have  been  surrendered  up  for  can- 
cellation, and  then,  as  plaintiff  alleges,  stolen  by  Schuyler  and 
re-issued. 

6.  There  is  another  class  who  hold  under  certificates  issued 
by  the  Yice  President,  Worthen. 

7.  There  is  another  class  of  innocent  holders  who  have  taken 
without  knowledge  of  any  fraud.     I  assume  that  such  is  the 
fact,  because  it  is  not  averred  in  the  complaint  to  the  contrary, 
and  among  these  numerous  holders,  of  the  consideration  of 
whose  purchase  the  plaintiff  is  ignorant,  the  presumption  is 
they  are  innocent  holders  till  the  contrary  is  alleged. 

8.  There  is  still  another  class  who  hold  certificates  repre- 
senting in  part  genuine  and  in  part  spurious  stock. 

Now,  upon  these  facts,  assuming  them  as  true,  and  assuming 
that  this  suit  shall  proceed  with  the  view  of  determining  all 
questions  arising  on  the  facts,  it  is  quite  clear  that  some  of 
these  holders  are  entitled  to  recover,  whatever  may  be  the  de- 
cree as  to  others. 

With  regard  to  others,  it  is  equally  clear  the  plaintiff  would, 
at  the  proper  time,  be  entitled  to  judgment,  while  with  regard 
to  others  still,  the  respective  rights  of  the  parties  could  not  be 
decreed  without  the  solution  of  difficult  and  perplexing  ques- 
tions of  law,  and  undoubtedly  of  intricate  questions  of  both 
law  and  fact,  since  we  are  not  to  presume  that  these  parties 
defendant  will  suffer  judgment  to  pass  by  default. 

The  decree  when  finally  made  would  necessarily  be  in  the 
nature  of  distinct  decrees  against  the  several  parties  separately, 
and  as  above  observed,  as  to  some,  must  be  against  the  Rail- 
road Company  ;  in  other  cases  in  its  favor.  Thus,  as  to  those 
who  have  taken  with  full  knowledge  of  the  fraud,  and  the 
complaint  avers  that  some  did,  the  decree  must  be  against  the 


422  ABBOTTS'  PEACTICE  REPOKTS. 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


holder — a  proposition  too  obviously  true  to  need  discussion. 
As  regards  the  innocent  holders,  those  who  have  taken  for 
value  without  knowledge  of,  or  cause  to  suspect  the  fraud,  the 
validity  of  their  claim  upon  the  plaintiff  for  full  indemnity  in 
some  form,  is  perfect.  True,  that  proposition  only  comes  up 
incidentally  on  this  demurrer,  and  it  is  but  just  to  say  was  not 
made  a  subject  of  discussion  by  the  eminent  counsel  engaged 
in  the  argument.  Yet,  in  the  view  I  take  of  the  case,  it  presents 
itself  as  forming  one  of  the  elements  in  the  proposition  I  am 
seeking  to  demonstrate,  viz. :  that  upon  the  facts  set  forth  in  the 
complaint,  the  decree  in  this  suit,  if  the  bill  is  sustained,  must 
be  against  the  plaintiff  as  to  some  at  least  of  the  defendants. 

Under  that  view  of  the  case  I  am  permitted,  as  regards  the 
innocent  holders  for  value  without  notice,  to  say,  that  well 
settled,  long  established  principles  of  law  defining  the  respon- 
sibility incurred  by  principals  for  the  acts  of  their  agents,  de- 
termines the  question  of  liability  for  the  acts  of  Schuyler 
against  this  corporation,  while  at  the  same  time  fair  dealing, 
an  enlightened  equity,  sound  morals  and  public  policy,  all 
concur  in  requiring  there  should  be  no  relaxation  of  the  rule. 
Corporations,  capable  like  natural  persons  of  constituting  gene- 
ral agents,  doing  their  business  solely  through  agents  and 
boards  of  directors,  in  whom  all  having  transactions  with 
them  must  more  or  less  confide,  should  be  held  to  a  very  strict 
accountability  for  the  acts  of  their  agents,  and  the  policy  and 
necessity  of  such  rule  increases  in  practical  importance  just  in 
proportion  to  the  magnitude  of  the  business  intrusted  to,  and 
performed',  by  these  corporate  bodies. 

Passing  on  to  the  class  of  persons  who  hold  these  certificates 
under  usurious  contracts,  while  I  am  not  called  upon  to  anti- 
cipate at  this  stage  of  the  case  what  rule  of  law  must  be  ap- 
plied there,  it  is  sufficient  to  say  that  as  to  those  holders,  the 
decree  depends  on  a  solution  of  questions  of  both  law  and  fact, 
(for  I  cannot  assume  that  the  usury  will  not  be  denied  by 
answer),  which,  in  their  character,  are  separate  and  distinct 
from,  and  independent  of,  the  questions  raised  in  the  other 
classes  of  cases. 

Again,  the  rights  of  parties  holding  certificates  originally 
valid,  then  surrendered  for  cancellation,  and  afterward  surrep- 


NEW-YOKK.  423 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


titiously  issued,  requires  the  solution  of  still  other  questions  of 
law,  (probably  of  law  and  fact,)  for  the  plaintiff  claims  to 
treat  such  certificates  as  stolen,  and  so  not  vesting  in  any  other 
holder,  whether  innocent  or  guilty,  either  right  of  property  or 
of  action. 

And  so  as  to  all  of  these  holders,  the  different  state  of  facts 
under  which  each  hae  taken,  and  the  different  rules  to  be 
solved  and  applied,  show  that  not  only  must  there  be  separate 
and  distinct  adjudications  in  their  nature,  independent  each  of 
the  other,  but  also  that  no  one  class  of  holders  has  necessarily 
any  interest  in  the  questions  which  must  control  as  to  every 
other  class. 

Each  party  is  entitled  to  be  separately  heard,  and  this 
requires  separate  trials  for  each  separate  defendant,  since  be- 
tween no  two  of  them  is  there  a  privity  of  title  or  interest. 

A  further  effect,  which  necessarily  follows  a  joinder  of  all 
these  defendants,  is  that  while  each  defendant  prefers  a  claim 
which  is  distinct  from  that  of  every  other,  yet  no  judgment  can 
be  given  in  his  favor  until  a  general  decree  is  made  as  to  all. 

Thus  the  one  who  holds  as  a  bona  fide  purchaser  without 
notice  cannot,  upon  proving  the  facts  which  apply  to  his  case, 
take  judgment  and  enforce  his  rights  without  regard  to  the  other 
defendants,  but  must  remain  inactive  with  no  ability  to  pro- 
ceed until  all  the  complex,  intricate  and  perplexing  questions 
of  law  and  fact  affecting  every  other  party  have  been  tried, 
the  questions  passed  upon,  appeals  taken  and  disposed  of, 
(should  either  party  wish  to  appeal),  reviewed  in  the  Appel- 
late Court,  perhaps  sent  back,  then  re-tried,  re-determined, 
and  perhaps  (for  who  knows  to  the  contrary?)  re-appealed, 
and  all  this,  too,  while  he  has  no  interest  whatsoever  in  the 
questions  thus  litigated  between  the  plaintiff  and  any  other 
party  than  himself. 

If  this  suit  is  to  be  maintained,  such  must  necessarily  be  its 
effect,  provided  the  bill  has  for  its  object  the  end  avowed  by 
the  plaintiff,  viz  :  a  final  determination  between  the  plaintiff 
and  each  holder  of  all  questions  respecting  this  over-issue  of 
stock.  If  such  is  the  object  of  the  bill,  the  results  I  have 
mentioned,  must  follow.  If  it  is  not,  the  bill  should  be  dis- 
missed. 


424  ABBOTTS'  PRACTICE  EEPORTS. 

New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 

I  have  assumed  that  the  several  defendants  may,  by  way  of 
counter-claim,  set  up  the  demands  they  assert  against  the  Com- 
pany. Whether,  under  the  Code,  they  can  do  so,  may  be  a 
serious  question ;  but,  without  deciding,  I  will  assume  they 
can,  since  that  is  the  view  of  the  case  most  favorable  to  the 
plaintiff.  Assuming  that,  and  then  tracing,  as  we  have,  the 
nature  of  the  proceedings  to  follow,  provided  the  demurrer  is 
overruled,  with  a  view  of  determining  the  character  of  the 
suit,  we  find  it  resolves  itself  into  a  proposition  to  try  in  one 
suit  nearly  three  hundred  separate  and  distinct  causes  of 
action,  claimed  to  be  held  by  as  many  different  parties,  having 
but  one  feature  common  to  all,  viz :  that  the  basis  of  these 
several  claims  is  a  fraud  perpetrated  by  the  plaintiffs'  agent. 
Will  such  an  action  lie  ? 

Plaintiffs  aver  it  can  be  sustained  as  a  'bill  of  interpleader  ; 
but  that  seems  impossible,  because  the  plaintiff  in  such  bill 
must  have  no  interest  in  the  subject  of  the  litigation. 

When  that  is  the  case,  and  the  plaintiff  has  not  the  means, 
without  hazard  to  himself,  of  determining  to  whom  among 
several  and  rival  claimants  the  fund  in  his  hands  is  properly 
payable,  he  will  be  permitted  to  bring  the  fund  into  Court,  and 
compel  the  rival  claimants  to  interplead  each  with  the  other, 
while  the  only  decree  the  plaintiff  can  have,  is,  that  the  bill 
was  properly  filed. 

I  can  see  no  feature  in  this  case  which  in  principle  brings  it 
within  that  class  of  bills,  (Story  Eq.  Juris.,  §  807,  and  cases 
there  cited ;  Har.  Ch.  96  ;  Cooper's  Eq.  456  ;  Atkinson  v.  Monks, 
1  Cow.  694,  703).  In  the  case  last  cited,  Mr.  Justice  Sutherland 
lays  down  the  following  as  the  distinguishing  feature  of  a  bill 
of  interpleader : 

1st.  That  two  or  more  persons  have  preferred  a  claim  against 
the  plaintiff.  2d.  That  they  claim  the  same  thing.  3d.  That 
the  plaintiff  cannot,  without  hazard,  determine  to  whom  it 
belongs  ;  and  4th.  That  he  has  no  interest  in  the  thing  claimed. 
Here  the  plaintiff  is  directly  interested.  The  suits  brought, 
are  to  recover  directly  from  this  corporation  the  losses  sustained 
by  these  several  holders,  or  in  some  form  to  make  the  corpora- 
tion itself  responsible  for  the  acts  complained  of.  Again,  these 
parties  do  not  claim  the  same  thing  further  than  they  all  seek 


NEW-YORK.  425 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


to  make  the  corporation  personally  liable  for  their  losses.  But 
this  is  not,  within  the  meaning  of  the  rule  above  stated,  any- 
more claiming  the  same  fund,  or  thing,  or  duty,  than  would  be 
several  different  claims  by  several  different  parties  to  recover 
for  as  many  several  and  independent  wrongs  inflicted  on  each, 
and  for  which  each  would  have  his  separate  redress. 

It  is  argued  that  the  plaintiff  has  really  no  interest  in  this 
controversy,  on  the  ground  that  the  corporation  is  but  a  trustee, 
charged  with  the  protection  of  the  interests  of  the  holders  of 
its  stock,  and  holding  its  property  in  trust  merely  for  the  sev- 
eral individual  corporators,  and  so  disinterested  as  between  the 
holders  of  the  genuine  and  alleged  fraudulent  stock.  The  argu- 
ment overlooks  the  fact  that  it  is  the  aggregation  of  individual 
corporators,  united  under  a  charter  which  constitutes  that  legal 
entity,  that  artificial  statutory  person,  which  is  created  by  law, 
and  termed  a  Corporation. 

In  this  case  the  aggregate  body  of  individual  corporators 
united  together  under  this  charter,  which  gives  them  a  com- 
mon name,  a  common  seal,  perpetual  succession,  and  which  is 
known  by  the  name  of  the  New  York  &  New  Haven  Rail- 
road Company,  is  what  constitutes  this  Corporation. 

The  charter  merely  binds  together  in  interest  (so  that  it  can 
act  with  unity)  this  body  of  constantly  changing  parties,  and, 
in  the  very  nature  of  things,  there  can  exist  between  the  Cor- 
poration and  the  individual  corporators,  by  virtue  of  this  cor- 
porate organization,  no  such  relation  as  that  of  trustee  and 
cestui  que  trust. 

A  Corporation  is  a  unity,  but  it  is  the  aggregation  of  the 
individual  corporators  under  the  charter  which  makes  the  unit. 
(Kyd  on  Corp.,  13  Dart.  Call  vs.  Woodman,  4  Wheat.  436  ; 
Providence  Bank  vs.  Billings,  4  Peters,  562).  . 

Nor  can  the  bill  be  sustained  as  one  in  the  nature  of  a  litt 
of  interpleader.  In  such  cases  the  plaintiff  has  a  certain  spe- 
cies of  interest  in  the  matter  in  dispute,  but  his  rights  are 
affected  by  rival  claimants  ;  as  in  the  case  of  a  mortgagor  who, 
wishing  to  pay  up  his  mortgage  and  have  the  lien  discharged, 
finds  that  several  parties  claim  the  moneys  which  he  admits  to 
be  due  to  some  one.  The  Court  will  allow  a  bill  in  the  nature 
of  a  bill  of  interpleader  in  such  case.  And  numerous  other  cases 


426  ABBOTTS'  PKACTICE  REPORTS. 

New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 

might  be  cited  in  which  such  bills  are  proper ;  but  the  facts 
must  bring  them  within  the  same  general  principle.  (Story's 
Eq.  Juris.,  824,  and  the  cases  there  cited).  But  there  is  no 
analogy  between  that  class  of  cases  and  the  present.  The 
relief  the  plaintiff  asks  consists  in  the  assertion  of  a  positive 
right,  adverse  and  hostile  to  the  parties  defendant.  Plaintiff 
charges  that  the  defendants  hold  spurious  certificates  of  the 
stock  of  the  Company,  and  demands  that  those  certificates  be 
declared  void,  surrendered  up  and  canceled. 

Here  at  once  is  a  direct  conflict  between  the  plaintiff  and 
the  defendants.  But,  how,  or  in  what  way  are  the  defendants 
to  interplead  ?  What  has  any  one  defendant  to  demand  as 
against  any  other  defendant,  or  against  the  aggregate  of  the 
defendants?  Should  the  Court  decree  them  to  interplead, 
what  are  they  to  plead  ?  what  judgment  is  the  Court  to  give 
as  between  these  several  defendants  ?  It  is  quite  plain  what 
judgment  must  be  given  on  the  facts  pleaded  as  between 
plaintiff  and  some  of  these  defendants ;  but  as  between  defend- 
ant and  defendant,  it  is  equally  plain  there  is  no  judgment  to 
be  rendered. 

Nor  can  I  discover  any  principle  on  which  the  complaint 
can  be  sustained  as  a  Mil  of  peace.  Such  bills  are  well  known 
and  are  proper  in  a  variety  of  instances,  and  may  be  filed 
against  a  large  number  of  parties.  Such  as  a  bill  to  establish 
a  right  to  an  exclusive,  as  against  many  who  claim  a  several, 
right  of  fishery.  To  establish  a  right  to  the  exclusive  enjoy- 
ment of  a  tract  of  land  against  all  the  inhabitants  of  a  par- 
ticular manor,  district,  or  township,  claiming  rights  of  com- 
mon in  the  same  land.  A  bill  by  a  patentee  to  establish  or 
protect  his  rights  against  numerous  others  engaged  in  infring- 
ing those  rights,  and  in  numerous  other  instances,  where  the 
main  question  to  be  decided,  applies  equally  to  all  the  defend- 
ants, or  is  one  in  which  they  are  all  equally  interested  or  with 
which  they  are  in  some  way  connected.  (Story  Eq.  Juris.  §  853 
to  §  857,  3  John  JR.,  566.  Trustees  of  Town  of  Huntington  v. 
Nicholl,  3  Johns.  506;  Brinckerhoff  v.  Brown,  6  John.  Ch.R.  139). 

So  also  bills  filed  by  a  party  claiming  some  right  or  entitled 
to  some  relief  against  all  of  the  defendants,  (and  they  may  be 
very  numerous),  based  upon  a  confederacy  or  combination 


NEW-YOKE.  427 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


among  those  parties  for  the  accomplishment  of  a  general 
object,  to  the  injury  of,  or  in  fraud  of  the  rights  of  the  plain- 
tiff, are  of  this  class.  In  such  cases,  to  avoid  multiplicity  of 
suits,  the  bill  will  lie  against  all  the  confederates  in  the 
fraud,  they  being  engaged  in  one  common  object,  and  that 
too,  although  in  carrying  out  the  details  the  several  confede- 
rates may  have  performed  acts,  or  claim  to  have  acquired 
rights,  separate  and  distinct  from  those  claimed  by  any  of  the 
other  defendants.  If  the  one  common  object  which  was  the 
starting  point  of  the  combination  is  made  out,  then  the  sepa- 
rate interests  or  acts  of  the  several  defendants  are  but  emana- 
tions from  a  common  source. 

Such  was  the  nature  of  the  case  in  Brinckerhoff  v.  Brown, 
(6  Johns.  Ch.  Rep.  139),  commented  on  and  approved  in  Fel- 
lows v.  Fellows,  (4  Cow.  682).  There  the  charge  was  a  combi- 
nation of  all  the  defendants  in  one  common  object— -fraud — 
to  carry  out  which  general  object  a  series  of  separate  and  dis- 
tinct acts  were  performed  by  each  defendant,  and  those  acts, 
independent  of  and  distinct  from  other  acts  performed  by 
others,  yet  all  in  furtherance  and  consummation  of  the  general 
object  .which  formed  the  confederacy,  viz:  Fraud. 

The  plaintiff  had  a  right  to  be  relieved  against  the  effects  of 
this  combination,  and  this  brought  the  case  within  the  rule 
laid  down  by  that  profound  jurist,  the  late  Chancellor  Kent,, 
who,  in  Brinckerhoff  v.  Brown,  said — a  general  principle  de- 
ducible  from  all  the  cases  is,  "  that  a  bill  against  several  par- 
ties must  relate  to  matters  of  the  same  nature  and  having  a 
connection  with  each  other,  and  in  which  all  of  the  defendants 
are  more  or  less  concerned,  though  their  rights  in  respect  to 
the  general  subject  of  the  case  may  be  different."  That  gene- 
ral principle  applies  to  all  cases  where  there  is  a  multiplicity 
of  parties  and  the  bill  is  filed  to  avoid  multiplicity  of  suits. 
The  bill  must  then  have  for  its  foundation  some  issue  which 
concerns  all  the  parties  brought  in  as  defendants — an  issue 
with  which  each  defendant  is  in  some  way  connected,  so  as  to 
give  the  plaintiff  a  right  to  some  relief  as  to  each  one  and 
against  all. 

The  several  interests  or  questions  represented  in  the  persons 
of  the  several  defendants,  must,  like  the  several  branches  of  a 


428  ABBOTTS'  PRACTICE  REPORTS. 

New  York  <fe  New  Haven  R.  R.  Co.  a.  Schuyler. 

tree,  have  one  common  trunk  from  which  they  all  originate. 
That  trunk  is  the  one  common  object  with  which  the  several 
parties  defendant  are  all  connected  as  offshoots  from  it.  The 
decree,  like  the  forester's  axe,  is  aimed  at  that  trunk,  and  the 
fate  of  the  body  becomes  the  fate  of  its  branches.  The  idea  I 
would  convey  is  expressed  in  the  figurative  language  employed 
by  Chancellor  Kent  in  Brinckerhoff  v.  Brown,  where  he  says : 

"The  several  defendants  performed  different  parts  of  the 
same  drama — it  was  still  one  piece — one  entire  performance, 
marked  by  different  scenes." 

If  I  understand  the  authorities,  the  above  rules  are  of  uni- 
versal application ;  and  this  case,  to  be  sustained,  must  be 
fairly  brought  within  those  principles.  The  plaintiff  must 
have  rights  to  assert  or  relief  to  demand  against  all.  The  first 
element,  the  first  ingredient  in  a  bill,  its  very  basis,  is  a  right 
to  relief  in  some  form,  and  that  against  not  a  portion  merely, 
but  against  all  the  defendants,  otherwise  they  cannot  be 
joined.  If  the  plaintiff  is  in  the  wrong,  and  the  right,  if  any 
exists,  is  one  which  it  is  for  the  defendant  to  assert  against  the 
plaintiff,  it  will  hardly  be  contended  that  the  plaintiff  can  se- 
lect his  forum — sue  the  defendant — call  him  into  court,  and 

t  ' 

then  ask  the  court  to  compel  him  to  prosecute  the  plaintiff  in 
that  forum,  or  forever  hold  his  peace. 

I  know  of  nothing  in  the  history  of  our  jurisprudence  which 
will  be  claimed  as  authority  for  such  a  step. 

Now,  keeping  the  above  rules  all  in  view,  how  stands  the 
case  with  this  railroad  company,  the  plaintiff  here  ?  We  find 
that  its  own  agent,  held  out  by  it  to  the  world  as  one  in  whom 
implicit  confidence  might  be  placed  by  all  dealing  with  the 
corporation,  or  buying  its  stock — we  find  that  this  man,  the 
president  of  the  company,  violates  the  confidence  reposed  in 
him  by  the  plaintiff.  But  in  what  way  ?  Has  he  taken  the 
funds,  or  property,  or  assets  of  the  company,  and  then,  confed- 
erating with  the  defendants,  undertaken  to  distribute  or  share 
them  with  the  defendants,  in  fraud  of  the  company?  No ;  he 
has  not  touched  a  dollar  of  those  funds,  or  any  part  of  the 
company's  assets.  He  has  only  issued  certificates  which  pur- 
port to  be  evidence  that  the  party  to  whom  they  were  issued 
was  a  stockholder  to  the  extent  named  in  the  certificate,  when 


NEW-YORK.  429 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


the  fact  was  not  so.  The  certificates  are  false.  They  say 
what  is  not  true  ;  but,  holding  the  position  given  him  by  the 
plaintiff,  and  known  as  the  president  of  the  company,  he  is 
enabled  to  sell  them,  or  procure  them  to  be  sold.  They  are 
sold  openly  in  the  market,  and  in  part,  at  least,  to  innocent 
purchasers,  who  suppose,  and  have  every  reason  to  suppose 
them  genuine.  They  part  with  their  money  for  these  certifi- 
cates— are  victimized,  and  then  Schuyler  runs  away.  Now, 
take  just  what  the  plaintiff  says  about  all  this,  viz. :  that  a  part 
of  these  purchasers  are  guilty  confederates  with  Schuyler,  or 
at  least  that  they  bought  with  full  knowledge  of  their  false 
character.  If  that  is  so,  then  under  no  circumstances  as  to 
those  holders  can  the  company  sustain  any  loss,  for  the  certifi- 
cates are  as  valueless  to  the  guilty  holder  as  an  equal  amount 
of  counterfeit  bank  notes.  If  they  sue,  the  company  has  only 
to  defend  and  defeat  them.  But  there  are  others  who  con- 
Tessedly  are  innocent  purchasers  of  these  false  certificates — for 
value  and  without  notice — and  they  are  made  parties  here. 
Now  against  those  parties  what  rights  have  this  corporation? 
What  claim  has  the  company  on  them  ?  What  claim  can  it 
have  ?  What,  in  the  shape  of  a  decree,  will  this  railroad  com- 
pany ask  this  court  to  make  in  its  favor,  and  against  these 
innocent  victims  ?  To  give  up  these  false  certificates,  fraudu- 
lently imposed  upon  them  by  the  plaintiff's  own  agent,  in 
whom  this  company  had  assured  them  they  could  repose  unli- 
mited confidence  ?  What  right  has  this  corporation  acquired 
as  against  these  innocent  holders,  that  they  should  have  such 
a  surrender  made,  or  will  the  corporation  ask  that  these  par- 
ties be  compelled  to  sue  the  corporation  ?  That,  as  it  seems 
to  me,  is  clearly  the  effect  of  sustaining  this  bill  against  these 
innocent  holders,  viz:  to  enable  the  plaintiff  to  select  the 
forum  and  compel  these  parties  to  sue  there,  or  not  at  all — 
that  is,  if  by  a  joinder  it  is  intended  in  this  action,  as  is  avowed, 
to  have  all  questions  arising  out  of  these  frauds  adjudicated — 
for  I  have  already  held  that  these  innocent  purchasers  have  a 
perfect  right  to  full  indemnity  against  the  company  for  the 
acts  of  Schuyler.  But  they  would  thus  not  only  be  compelled 
to  litigate  in  a  forum  selected  by  their  adversary — by  an  ad- 
versary, too,  who  had  no  possible  right  of  action  against  them 


430  ABBOTTS'  PRACTICE  REPORTS. 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


— but  to  do  it  in  the  same  action  with  numerous  other  defend- 
ants, between  whom  and  themselves  there  is  not  the  most 
remote  connection.  I  know  of  no  rule  which  can  render  such 
a  bill  proper. 

As  to  the  guilty  holders,  I  have  already  said  they  have  no 
rights  against  the  Company,  and  that  if  they  sue,  the  Com- 
pany has  but  to  defend  to  defeat  them* 

But  the  bill  seems  to  be  based  upon  the  idea  that  there  is  a 
species  of  value  or  property  in  these  certificates  which  entitles 
the  Company  to  have  them  surrendered.  This  might  possibly 
be  the  case  as  to  all  confederates  of  Schuyler  in  the  fraud,  who 
hold  these  certificates  and  are  asserting  some  claim  upon  the 
Company,  under  them — but  even  that  is  doubtful — for  as  to 
the  guilty  holders,  the  certificates  are  worth  no  more  than  the 
forged  notes  of  the  Company.  But  would  a  bill  be  sustained 
to  compel  a  surrender  up  of  forged  notes,  filed  by  the  person 
whose  name  purported  to  be  signed  to  the  notes  ?  It  seems  to 
me  not.  If,  instead  of  issuing  $2,000,000  of  false  certificates, 
this  Company  had  held  securities  to  the  same  amount — say 
bonds  of  some  other  company — guaranteed  by  the  plaintiffs, 
and  Schuyler  had  confederated  with  these  defendants  to  sell 
and  distribute  the  securities  among  the  defendants  in  fraud  of 
the  plaintiff,  and  had  consummated  this  fraud,  then  on  princi- 
ple, this  Company  could  have  filed  a  bill  against  all  the  par- 
ties, and  asked  to  have  the  securities  surrendered,  and  each 
defendant  enjoined  from  suing  on  the  guaranty — if  such  suits 
had  been  commenced  or  threatened. 

But  suppose  the  plaintiff  holding  just  such  securities,  had 
authorized  Schuyler  to  sell  them,  and  he  had  sold  a  part  to 
innocent  purchasers  for  value,  and  had  combined  with  certain 
others  to  dispose  of  the  residue  in  fraud  of  the  Company,  and 
had  not  only  done  so,  but  had  appropriated  the  purchase  money 
"  paid  by  the  innocent  purchasers,  to  his  own  purposes,  would  a 
bill  filed  against  him  and  his  confederates  in  the  fraud,  lie 
against  the  innocent  holders  too,  to  procure  a  surrender  of 
their  stock  ?  That  will  not  be  claimed. 

Now  I  do  not  assert  that  the  case  at  bar  is  parallel  in  all 
respects  with  the  case  I  have  supposed ;  but  as  it  seems  to  me, 
it  is  sufficiently  so  to  be  governed  by  the  same  general  princi- 


NEW-YORK.  431 


New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 


pie.  As  between  these  innocent  holders,  and  Schuyler  and  the 
guilty  holders,  I  can  see  no  "  matters  of  the  same  nature,  and 
having  a  connection  with  each  other,  and  in  which  all  the 
defendants  are  more  or  less  connected"  within  the  meaning  of 
the  rule  laid  down  in  Brinckerhoff  v.  Brown.  Had  they  all 
been  guilty  of  the  fraud,  or  directly  or  indirectly  conspired 
with  Schuyler,  there  would  have  been  a  common  question  as 
to  all. 

The  joint  intent  to  defraud,  would  have  formed  the  body, 
and  the  acts  and  interests  of  the  several  defendants  the 
branches,  and  then  that  part  of  the  case  would  have  been 
made  out  for  a  bill,  and  a  proper  bill  too,  if  the  other  facts 
warranted. 

But  no  such  common  question,  nor  any  question  as  far  as  I 
can  perceive,  arises,  or  is  made  out,  which  connects  the  several 
parties,  or  entitles  the  plaintiff,  admitting  all  his  facts — to  a 
decree  against  any  parties,  certainly  against  none  who  are 
innocent  purchasers ;  and  the  guilty  ones,  except  Schuyler,  are 
not  pointed  out  in  the  complaint,  and  so  I  must  presume  Cross 
an  innocent  one. 

The  mere  fact  that  all  of  these  parties  happen  to  hold  the 
false  certificates,  does  not  bring  them  within  the  rule  laid 
down  by  Chancellor  Kent. 

But  there  seems  to  be  a  further  general  rule  (although  the 
rule  to  which  allusion  has  already  been  made,  has  its  excep- 
tions,) that  a  Bill  of  Peace  will  not  be  sustained  to  enjoin 
numerous  defendants  from  bringing  separate  suits  until  the 
plaintiff  has  first  established  his  rights  by  trial  in  a  court  of 
law  as  to  some  one  of  them.  "West  vs.  The  Mayor  of  New 
York,  (10  Paige,  539).  The  case  of  a  patentee  after  succeeding 
on  a  trial  at  law,  is  a  familiar  illustration  of  the  rule  that  it 
may  lie  afterwards.  On  the  whole  I  can  discover  no  principle 
which  applied  to  this  case  will  sustain  the  complaint.  The 
difficulties  are  irremediable,  such  as  are  incident  to  and  inhe- 
rent in  the  nature  of  the  case  itself.  Convenience  will  not 
sanction  it — for  should  an  attempt  be  made  to  proceed  with 
the  suit,  no  ingenuity  or  perseverance  of  counsel — no  aid  which 
the  court  could  furnish,  can  relieve  the  case  from  these  per- 
plexities, embarrassments  and  delays  which  must  necessarily 


432  ABBOTTS'  PRACTICE  REPORTS. 

New  York  &  New  Haven  R.  R.  Co.  a.  Schuyler. 

attend  every  attempt  to  urge  it  forward  ;  while  on  the  other 
hand,  the  chance  of  frequent  deaths  and  other  accidents  inci- 
dent to  the  case,  with  the  necessity  of  numerous  revivors,  would 
enable  any  party,  should  interest  so  prompt,  to  make  the  liti- 
gation almost  interminable.  I  regret  the  conclusion  to  which 
I  am  forced.  I  had  hoped  to  discover  there  was  a  mode  by 
which  in  a  single  suit  embracing  all  parties,  those  questions 
affecting  interests  of  such  magnitude  and  parties  so  numerous, 
might  be  speedily  solved — and  the  rights  of  all  determined. 
We  find  here  a  loss,  through  the  faithlessness  of  one  man, 
amounting  to  near  $2,000,000,  all  or  nearly  all  of  which  must 
fall  upon  innocent  parties — whether  such  loss  is  sustained  by 
the  holders  of  the  genuine  or  spurious  certificates,  or  in 
part  by  each.  Such  a  loss  is  a  deplorable  public  calamity. 
Could  the  aggravation  of  these  evils  caused  by  numerous  and 
protracted  suits,  brought  to  settle  the  questions  arising  out  of 
this  fraud,  be  avoided,  and  a  speedy  determination  arrived  at 
in  one  action,  the  court  would  gladly,  if  it  had  the  power,  enter- 
tain jurisdiction  and  terminate  the  controversy.  But  increased 
reflection  has  but  confirmed  my  convictions  that  the  difficul- 
ties of  pursuing  such  a  course  cannot  be  overcome.  For  such 
obstacles  the  eminent  pleader  who  drew  this  bill,  is  not  respon- 
sible. They  have  their  origin  in  the  nature  of  the  case  itself, 
rendering  a  joinder  of  all  these  defendants  in  one  bill,  under 
the  circumstances,  an  impracticable  mode  of  determining  the 
rights  of  the  parties. 

The  complaint  is  multifarious. 

The  demurrer  must  be  sustained,  and  judgment  ordered 
accordingly  with  costs,  and  the  injunction  as  to  the  demurrent 
dissolved. 


NEW-YOBK.  433 


Ginochio  a.  Orser. 


GINOCHIO  a.  ORSER. 

New  York  Common  Pleas  ;  Special  Term,  May,  1855. 
ESCAPE. — LIABILITY  OF  SHERIFF. 

The  sheriff  cannot  protect  himself  in  an  action  for  an  escape,  by  showing  irregu- 
larity in  an  execution  against  the  person  upon  which  the  arrest  was  made. 

But  if  the  execution  be  void,  the  sheriff  is  not  liable  for  an  escape  of  the  debtor. 

The  sheriff  may  protect  himself  in  an  action  for  an  escape,  by  showing  that  the 
judgment  debtor  was  privileged  from  arrest. 

Motion  to  strike  out  portions  of  an  answer. 

• 

The  portions  of  the  answer  objected  to,  and  the  grounds  of 
the  motion,  appear  in  the  opinion. 

WOODRUFF,  J. — This  action  is  prosecuted  against  the  sheriff 
of  the  city  and  county  of  New  York  for  an  alleged  escape  of 
one  Figari,  who  it  is  alleged  was  arrested  on  a  ca.  sa.  issued 
upon  a  judgment  docketed  in  the  office  of  the  clerk  of  the 
city  and  county  of  New  York,  in  favor  of  the  plaintiff. 

The  defendant  in  his  answer  among  other  things,  sets  up 
that  "  the  paper  alleged  to  be  an  execution,  is  void  on  its  face, 
and  was  not  issued  by  any  person  or  officer  authorized  to  issue 
the  same.  That  the  judgment  docket  upon  which  the  same 
purports  to  be  based,  did  not  authorize  or  justify  the  issuing 
of  an  execution  against  the  person  of  said  Figari.  That  the 
defendant,  Figari,  was  not  liable  to  be,  and  could  not  be, 
arrested  in  the  action  in  which  said  judgment  is  alleged  to 
have  been  rendered,  and  said  execution  was  null  and  void,  and 
that  this  defendant  could  not  lawfully  arrest  said  Figari  under 
the  same,  and  could  not  lawfully  detain  him  in  custody  upon 
any  arrest  under  color  of  said  pretended  execution." 

This  part  of  the  answer  the  plaintiff  moves  to  strike  out,  and 
the  grounds  upon  which  the  motion  is  urged,  are : — 

1.  That  the  sheriff  cannot  in  such  an  action,  set  up  as  a 
defence,  the  irregularity  of  the  execution  or  of  the  judgment. 

2.  That  the  sheriff  cannot  plead  that  the  judgment  was  satis- 
fied or  discharged. 

28 


434  ABBOTTS'  PRACTICE  REPORTS. 

Ginochio  a.  Orser. 

3.  That  the  sheriff  cannot  set  up  as  a  defence  error  in  the 
judgment  as  an  excuse  for  an  escape — but  having  arrested  the 
defendant,  he  is  bound  to  keep  him  until  discharged  by  due 
course  of  law. 

And  therefore  that  the  matters  alleged  in  the  answer,  are 
immaterial,  and  should  be  stricken  out. 

That  the  sheriff  cannot  protect  himself  in  an  action  for  an 
escape,  by  showing  error  in  the  judgment  or  irregularity  in  the 
ca.  sa.,  has  been  repeatedly  adjudged. 

Thus  in  Bissell  v.  Kip,  (5  Johns.  89),  it  was  held  that  where 
the  ca.  sa.  was  voidable  by  reason  of  a  variance  between  the 
writ  and  the  judgment,  the  sheriff  could  not  avail  himself  of 
the.  error. 

So  in  Scott  v.  Shaw,  (13  Johns.  378),  Cable  v.  Cooper,  (15 
Johns.  152),  and  Jones  v.  Cook,  (1  Cow.  309),  in  all  which  the 
process  was  deemed  voidable  for  irregularity,  the  sheriff  was 
declared  responsible  for  the  safe  keeping  of  the  prisoner. 

So  when  a  ca.  sa.  was  issued  after  a  year  and  a  day,  the 
sheriff  when  sued  for  an  escape,  cannot  object  to  the 
irregularity  of  the  ca.  sa.  (Ontario  Bank  v.  Hallett,  8 
Cow.  192). 

The  decisions  in  relation  to  the  duties  of  a  sheriff,  under  a 
fi.fa.,  are  of  a  similar  purport.  (The  People  v.  Dunning,  1 
Wend.  16.  Walden  v.  Davison,  15  Wend.  575). 

These  cases  recognize  and  affirm  a  distinction  between  pro- 
cess which  is  void  and  that  which  is  voidable  merely,  and  it 
is  repeatedly  stated  that  when  the  process  is  void,  the  sheriff 
is  not  bound  to  execute  it,  nor  liable  for  any  neglect,  partial 
or  total.  But  otherwise,  if  the  process  is  voidable  only ; 
because  if  the  defendant  in  execution  does  not  seek  to  avoid 
the  process,  and  where  the  court  might  if  applied  to,  allow  an 
amendment,  the  sheriff  cannot  avail  himself  of  the  defects  in 
process.  (Ames  v.  Webbers,  8  Wend.  545). 

But  on  the  other  hand  if  the  ca.  sa.  is  void,  it  is  equally 
well  settled  that  the  sheriff  is  not  liable  for  an  escape.  There 
being  in  this  class  of  cases  a  further  distinction  affecting  the 
sheriff  and  his  liability,  to  wit: — If  the  process  is  issued  by  a 
court  of  competent  jurisdiction,  and  is  regular  on  its  face,  it 
protects  the  officer  in  executing  it.  But  when  void  on  its  face, 


NEW-YORK.  435 


Ginochio  a.  Orser. 


it  furnishes  no  protection  to  the  sheriff  himself.  But  in  neither 
case,  if  void  for  any  cause,  does  it  impose  on  the  sheriff  any 
duty,  nor  is  he  liable  for  neglecting  or  refusing  to  obey  its 
mandate.  The  cases  above  cited,  recognize  this  rule. 

In  Jones  v.  Cook,  (1  Cow.  309),  it  is  said  that  when  a  ca.  sa. 
is  void,  the  sheriff  is  not  liable  for  an  escape. 

In  Earl  v.  Camp,  (16  Wend.  562),  it  is  held  that  if  an  exe- 
cution be  legal  on  its  face,  it  protects  the  officer ;  but  that  the 
plaintiff  cannot  recover  against  him  for  neglecting  to  collect  it, 
unless  it  was  issued  upon  a  judgment  which  was  not  void.  That 
in  no  case  when  the  sheriff  becomes  satisfied  that  there  is  a 
want  of  jurisdiction,  is  he  bound  to  act  in  any  way,  and  if  he 
refuses,  the  party  cannot  make  him  liable.  The  subject  is 
fully  discussed  in  this  case,  and  numerous  cases  cited,  and  con- 
sidered and  approved,  and  especially  the  case  of  Albee  v. 
"Ward,  (8  Mass.  79),  in  which  an  officer  justified  an  escape, 
when  the  execution  though  fair  on  its  face,  was  issued  without 
authority,  and  yet  it  was  held  that  the  process  was  a  complete 
protection  to  the  officer. 

So  in  Horton  v.  Hendershot,  (1  Hill,  118),  it  was  held  that 
process  regular  on  its  face,  but  void  as  to  the  parties  in  whose 
favor  it  is  issued  for  want  of  jurisdiction,  was  a  protection  to 
the  officer ;  but  he  was  not  bound  to  execute  it,  and  if  sued,  the 
officer  may  answer  that  the  process  was  void. 

And  in  Cornell  v.  Barnes,  (7  Hill,  35,)  the  court  say  again, 
that  an  officer  is  under  no  obligation  to  serve  process  issued  on 
a  judgment  rendered  without  jurisdiction,  and  its  validity  is  a 
good  answer  to  an  action  for  refusing  to  execute  it. 

There  is  still  another  class  of  cases  in  which  the  sheriff  has 
been  permitted  to  protect  himself  by  showing  that  the  person 
of  the  defendant  is  privileged  from  arrest. 

In  Eay  v.  Hogeboom,  (11  Johns.  433),  it  was  held  that  an 
officer  was  not  bound  to  notice  that  a  defendant  in  a  ca.  sa., 
was  a  soldier  of  the  United  States,  and  privileged  from  arrest; 
but  if  he  choose  to  do  so,  he  may,  and  if  he  can  show  that  the 
defendant  is  privileged,  it  is  a  good  defence,  and  having  made 
an  arrest  in  such  case,  he  was  held  not  liable  for  an  escape. 

In  Secor  a.  Bell,  (18  Johns.  52),  and  Sperry  v.  Wellard,  (1 
Wend.  32,)  the  privilege  of  an  attorney  which  was  formerly 


436  ABBOTTS'  PKAOTICE  REPORTS. 

Ginochio  a.  Orser. 

set  up  by  his  own  act  of  suing  out  his  writ  of  privilege,  was 
held  no  protection  to  the  sheriff. 

But  the  principle  of  Ray  v.  Hogeboom  seems  to  have  been 
followed  in  Phelps  v.  Barton,  (13  Wend.  68,)  where  it  is  said 
that  the  sheriff  may  plead  in  a  bar  of  a  recovery  for  an  escape, 
that  the  defendant  was  exempt  from  arrest,  under  the  non- 
imprisonment  act. 

And  in  McDuffie  v.  Beddoe,  (7  Sill,  578),  it  is  plainly  inti- 
mated in  conformity  with  the  last  case,  that  "  when  the  arrest 
is  made  under  a  ca.  $#.,  regular  on  its  face,  but  issued  on  a 
judgment  in  action  on  contract,  the  officer  may  lawfully  per- 
mit an  escape. 

And  it  is  to  be  observed  that  under  the  Revised  Statutes,  the 
recovery  by  a  plaintiff  in  such  an  action,  is  no  longer  mea- 
sured inflexibly  and  conclusively  by  the  amount  of  the  judg- 
ment and  execution,  as  it  was  under  the  previous  statute  ;  (1 
Rev.  Laws,  425,  §  19),  but  the  recovery  is  confined  to  "  his 
damages  sustained  thereby,"  of  which  such  amount  is  no 
doubt  prima  facie  evidence,  but  which  may  be  reduced  by 
various  circumstances  ;  and  among  them  no  doubt  the  freedom 
of  the  party  from  arrest  would  not  only  be  ground  of  mitigat- 
ing damages,  but  would  conclusively  show  that  no  damages 
had  been  sustained — for  since  this  statute,  the  court  have  held 
that  poverty  of  the  prisoner  and  other  circumstances  tending 
to  show  that  the  plaintiff  has  sustained  no  actual  loss,  may  be 
given  in  evidence  by  the  sheriff.  (Patterson  v.  Westervelt, 
17  Wend.  543,  and  numerous  cases  cited. — 2  Rev.  Stat.  437,  § 
61,  and  as  modified  by  act  of  1847,  ch.  390,  §  2,  2  R.  S.,  4th 
ed.,  p.  681,  §  81). 

The  cases  above  referred  to,  seem  to  me  conclusive  upon 
this  motion.  If  the  ca.  sa.  was  void  on  its  face,  or  void  for 
want  of  jurisdiction  in  the  officer  by  whom  it  was  issued,  or 
the  judgment  did  not  warrant  or  justify  a  process  against  the 
person,  or  the  defendant  was  not  liable  to  arrest,  these  facts 
will  either  justify  the  sheriff  in  permitting  the  escape,  or  miti- 
gate damages. 

The  motion  must  be  denied.  The  defendant's  costs  of 
motion  fixed  at  $10,  will  abide  the  event  of  the  suit. 


NEW-YORK.  437 


The  Republic  of  Mexico  a.  Arrangois. 


THE  REPUBLIC  OF  MEXICO  a.  ARRANGOIS. 
New  York  Superior  Court ;  Special  Term,  April,  1855. 

POWER  OF  COURT  OVER  ATTORNEYS.     INQUIRY  INTO  AUTHORITY 
OF  ATTORNEY. 

The  court  will  not  compel  a  respectable  and  responsible  attorney  to  exhibit  in  the 
preliminary  stages  of  a  suit  his  authority  to  appear,  or  his  instructions  in  respect 
to  continuing  or  discontinuing  the  action,  where  no  indicia  of  fraud  are  shown.* 

The  mere  fact  that  another  action  has  been  commenced  in  another  State  after  suit 
brought  here,  and  that  it  is  still  pending,  is  no  reason  for  ordering  discontinuance 
of  the  suit  in  this  State. 

Motion  that  the  attorney  of  plaintiffs  be  required  to  file  with 
the  clerk  his  authority  to  sue,  and  his  instructions. 

This  action  was  brought  in  the  name  of  the  Republic  of 
Mexico,  to  recover  sums  alleged  to  have  been  received  by  the 
defendant,  as  agent  of  the  Mexican  government.  The  action 
was  commenced  in  January,  1855,  and  an  order  was  then 
made  holding  the  defendant  to  bail. 

The  defendant  now  moved  for  an  order,  requiring  the  au- 
thority for  commencing  this  suit,  to  be  produced  and  filed 
with  the  clerk  of  this  court,  under  the  oath  of  the  party  who 
may  claim  to  be  so  authorized,  and  that  all  instructions  to  con- 
tinue or  discontinue  the  same  should  be  so  produced  and  filed, 
and  that  upon  default  in  the  premises,  or  the  absence  of 
authority  to  commence,  or  to  continue  this  suit,  that  the  same 
be  dismissed  with  costs,  or  such  other  relief  as  may  be  just. 

This  motion  was  based  upon  an  affidavit,  stating,  that  since 
this  action  was  brought  the  plaintiffs  had  caused  another  action 
to  be  brought  against  him  in  the  Republic  of  Mexico,  where 
the  same  was  now  depending ;  and  stating  also  that  the  defend- 
ant "  has  reason  to  believe,  and  does  believe,  that  this  suit  is 
prosecuted  against  him  without  authority  from  the  said 
Republic,  and  that,  should  judgment  be  rendered  here  in  his 

*  Compare  the  ninety-nine  Plaintiffs  a.  Vanderbilt,  ante  193. 


438  ABBOTTS'  PKACTICE  REPORTS. 

The  Republic  of  Mexico  a.  Arrangois. 

behalf,  the  same  will  be  for  this  reason  repudiated  by  said 
Republic." 

This  motion  was  opposed  upon  the  proceedings  that  have 
been  had  in  the  action,  and  the  affidavit  of  the  Mexican  Min- 
ister resident  at  Washington. 

That  affidavit  stated  that  the  minister  had  received  the 
order  of  his  government,  to  demand  the  sum  so  retained,  and 
to  prosecute  the  same  by  suit,  and  that  this  action  is  brought 
under  such  orders. 

John  Anthon,  for  the  motion. 
Daniel  Lord,  opposed. 

BOSWOKTH,  J. — When  a  respectable  and  responsible  attorney 
appears  for  a  party,  the  court  will  not  ordinarily  inquire  into 
the  fact  whether  he  was  actually  authorized  to  appear  or  not. 
(Den ton  a.  Noyes,  6  Johns.  E.  296). 

Where  no  circumstances  are  shown  calculated  to  raise  a 
suspicion  of  fraud,  or  of  an  attempt  to  impose  upon  a  party, 
or  to  abuse  or  pervert  the  process  of  the  court,  even  the  mere 
fact  of  authority  will  not  be  investigated.  In  this  case,  the 
fact  of  actual  authority  having  been  given  is  sworn  to.  The 
position  of  the  party  in  respect  to  the  plaintiffs,  and  to  the 
defendant  in  this  transaction,  by  whom  the  authority  was 
given,  and  by  whose  orders  the  action  was  brought,  is  such  as 
to  repel  all  suspicion  or  presumption  that  no  such  authority 
has  been  given  as  he  swears  he  has  received. 

There  is  nothing  opposed  to  the  positive  affidavit  of  the  Minis- 
ter Plenipotentiary  of  the  Republic  of  Mexico  but  the  affidavit 
of  the  defendant,  that  "he  has  reason  to  believe,  and  does  be- 
lieve, that  this  suit  is  prosecuted  against  him  without  authority 
from  the  said  Republic.  No  fact  is  stated  as  the  basis  of  his 
belief,  nor  are  any  of  the  "  reasons"  of  the  belief  mentioned. 

Whether  the  court  would  require  evidence  of  the  authority 
to  be  filed  before  entry  of  the  judgment,  or  at  the  time  of 
entering  it,  as  a  greater  protection  to  the  defendant,  it  is  unne- 
cessary to  decide  now.  No  facts  are  stated  to  render  it  the 
duty  of  the  court  to  require  it  to  be  filed,  in  the  present  state 
of  the  action. 


NEW-YOKE.  439 


The  Republic  of  Mexico  a.  Arrangois. 


No  satisfactory  reason  is  assigned  for  requiring  any  instruc- 
tions, that  may  have  been  given  as  to  continuing  or  discontinu- 
ing the  action,  to  be  filed.  To  make  such  an  order  would  be 
equivalent  to  requiring  an  attorney  to  disclose  the  orders  given 
him,  as  to  the  conduct  of  the  suit,  and  the  contingencies  on 
which  he  should  abandon  it. 

No  authority  is  cited  in  support  of  such  practice,  and  an 
attempt  of  the  court  to  interfere  in  that  manner  with  the  ordi- 
nary course  of  litigation,  would  naturally  be  viewed  with, 
some  surprise. 

The  mere  fact  of  the  commencement  of  an  action  in  another 
State  after  this  was  brought,  and  its  pendency,  is  no  reason  for 
ordering  this  to  be  discontinued.  It  is  not  averred  that  the 
defendant  has  been  personally  served  with  process  in  that 
action,  or  that  h*  has  even  appeared  in  it. 

It  is  not  averred  that  he  has  been  arrested  in  it,  or  that  any 
of  his  property  has  been  attached  by  any  proceedings  taken  in 
it,  or  that  he  has  any  that  can  be  reached  by  any  proceedings 
that  can  be  taken  in  it. 

If  a  judgment  should  be  rendered  in  that  action  by  which 
the  rights  of  the  parties  would  be  concluded,  before  the  one 
pending  here  is  tried,  this  court  would  permit  the  judgment 
there  to  be  plead  puis  darrein  continuance,  or  by  supplemental 
answer. 

If  the  two  suits  should  proceed,  paripassu  to  judgment  and 
execution,  it  would  order  the  one  recovered  here  satisfied  on 
payment  of  the  one  recovered  in  Mexico. 

So  it  would  make  any  order  proper  and  adequate  to  protect 
the  defendant,  on  a  state  of  facts  being  presented,  that  called 
for  its  interference. 

Nothing  is  shown  on  this  motion,  rendering  it  necessary  or 
expedient  for  the  court  to  now  make  any  order  interfering 
with  the  ordinary  modes  of  procedure  in  such  an  action.  The 
motion  must  therefore  be  denied,  with  $7  costs. 


440  ABBOTTS'  PKACTICE  REPORTS. 

Davis  a.  Kinney. 

DAVIS  a.  KINNEY. 

New  York  Superior  Court ;  Special  Term,  May,  1855. 
STATUTE  OF  LIMITATIONS. — BANKRUPTCY. 

Where  one  of  several  partners  who  while  out  of  the  State,  contracted  a  debt  to 
creditors  within  the  State,  came  here  and  procured  a  discharge  under  the  bank- 
rupt act  of  1841,  and  afterwards,  and  more  than  six  years  after  the  contracting 
of  the  debt,  his  co-partner  came  into  the  State  and  was  sued  upon  the  indebted- 
ness . — Held  that  the  statute  of  limitations  was  no  bar  to  the  action. 

Trial  by  the  court,  without  a  jury. 

This  action  was  brought  by  Davis  and  others,  against  Henry 
L.  Kinney  and  Daniel  J.  Townsend,  to  recover  for  goods  sold 
and  delivered  in  1837". 

The  plaintiffs  at  that  time  were  partners  in  business,  in  New 
York  city,  and  the  defendants  were  partners  in  business  in 
Peru,  Illinois.  The  defendants  in  1837  purchased  goods  of 
the  plaintiffs  to  the  amount  of  $7000,  which  were  never 
paid  for. 

In  1840,  the  defendant,  Townsend,  came  to  this  State,  and 
here  took  the  benefit  of  the  bankrupt  act.  The  defendant, 
Kinney,  came  to  the  State  for  the  first  time  in  1855,  when 
this  suit  was  at  once  commenced  against  him. 

Each  of  the  defendants  plead  the  statute  of  limitations,  and 
Townsend  also  set  up  his  discharge.  The  plaintiff  was  allowed 
to  discontinue  as  against  Townsend,  without  costs.  The  issues 
between  the  plaintiffs  and  Kinney  were  tried  before  Campbell 
J.,  without  a  jury. 

J.  N.  Balestier,  for  plaintiffs. 

8.  C.  Reid,  for  defendant,  Kinney. 

F.  A.  Lane,  for  defendant,  Townsend. 

CAMPBELL,  J. — In  this  case  the  statute  of  limitations  was 
interposed  by  both  defendants,  and  a  discharge  under  the 
bankrupt  act  by  the  defendant,  Townsend.  On  the  motion  of 


NEW-YOKK.  441 


Davis  a.  Kinney. 


the  counsel  for  the  plaintiffs,  he  was  allowed  to  discontinue  the 
action  against  Townsend,  without  costs. 

It  appeared  on  the  trial  that  the  defendants,  who  were  co- 
partners, purchased  of  the  plaintiffs  in  this  city,  in  the  year 
1837,  goods  in  value  to  between  seven  and  eight  thousand  dol- 
lars. At  that  time  the  defendants  resided  and  carried  on  business 
at  Peru,  in  the  State  of  Illinois.  The  defendant,  Kinney,  from 
the  time  of  the  purchase  of  the  goods,  never  came  into  the 
State  of  New  York,  till  the  time  of  the  commencement  of 
this  suit.  About  the  year  1840,  the  defendant,  Townsend, 
came  into  the  western  part  of  the  State,  and  after  a  residence 
of  about  eighteen  months,  he  was  discharged  under  the  bank- 
rupt act  of  1841. 

Under  such  a  state  of  facts,  is  the  statute  of  limitations  a 
bar  to  the  recovery  against  the  defendant,  Kinney?  I  think 
clearly  not.  The  return  of  the  defendant,  Townsend,  to  this 
State,  did  not  set  the  statute  running  in  favor  of  the  other 
defendant. 

The  case  of  Brown  vs.  Delafield,  1  Demo,  445,  cited  by 
defendant's  counsel,  does  not  sustain  the  position  taken  by 
him.  In  that  case,  to  a  plea  of  the  statute  interposed  by  the 
defendants,  the  plaintiffs  replied  that  one  of  the  defendants 
had  been  absent  from  the  State.  On  a  demurrer  to  that  repli- 
cation, the  court  said  it  was  bad.  The  statute  was  a  bar  to  the 
action  against  the  resident  defendant,  as  he  might  have  been 
sued  at  any  time,  and  a  judgment  taken  against  him,  and  also 
a  judgment  against  the  non-resident  debtor,  under  the  joint 
debtor  act.  The  court  observes  :  "  On  the  return  of  the  absent 
defendant,  a  non-resident  defendant,  an  action  of  debt  might 
be  brought  on  the  judgment,  and  then,  in  such  case,  the  resi- 
dent defendant  could  not  have  pleaded  the  statute  of  limita- 
tions ;  and  should  the  one  who  had  been  absent,  interpose  that 
defence,  a  replication  like  the  one  before  the  court  would  fur- 
nish a  sufficient  answer  to  it."  In  other  words,  in  this  very 
case,  a  replication  that  defendant,  Kinney,  had  been  continu- 
ously out  of  the  State  since  the  time  the  action  accrued, 
would  have  been  held  good. 

I  am  further  of  opinion  that  even  if  the  statute  had  com- 
menced to  run  by  reason  of  the  return  of  the  defendant,  Town- 


442  ABBOTTS'  PRACTICE  REPORTS. 

Jones  a.  Palmer. 

send,  into  the  State,  that  then,  when  Townsend  was  discharged 
under  the  bankrupt  act,  the  statute  would  cease  to  run  as 
against  the  other  absent  defendant.  After  his  discharge,  which 
would  be  a  bar  to  the  recovery  of  a  judgment  against  him, 
there  would  be  no  mode  of  recovering  a  judgment  against  the 
other  defendant  under  the  joint  debtor  act.  The  plaintiffs  are 
entitled  to  judgment  for  $14,106  37,  being  the  amount  agreed 
upon,  if  defendant  was  liable. 


JONES  a.  PALMER. 
Supreme  Court,  First  District ;  Special  Term,  May,  1855. 

A  plaintiff  may  in  some  cases  be  allowed  to  set  up  one  cause  of  action  in  two  dif- 
ferent counts. 

Motion  to  strike  out  one  of  the  counts  of  a  complaint. 

The  complaint  in  this  action  contained  two  counts.  The 
first  averred  an  agreement  to  deliver  to  defendant  certain  mer- 
chandise, and  that  defendant  agreed  to  send  to  plaintiffs  cer- 
tain other  merchandise  therefor ;  that  plaintiffs  performed 
their  part  of  the  agreement,  but  that  defendant  did  not  deliver 
as  agreed,  and  had  not  paid  for  the  merchandise  delivered  by 
plaintiffs  ;  stating  its  value. 

The  second  count  averred  a  sale  and  delivery  of  the  same 
merchandise  for  a  sum  certain,  on  request  of  defendant,  and 
non-payment.  The  claim  for  judgment  was  for  this  amount. 

C.  M.  Hall  for  the  motion, — read  affidavits  to  show  that 
there  was  but  one  cause  of  action  stated  in  two  forms,  and 
claimed  that  one  count  was  redundant  and  irregular,  and  that 
such  a  mode  of  pleading,  since  the  Code,  was  unauthorized. 
He  cited  Churchill  v.  Churchill,  9  Now.  Pr.  jRep.,  552,  and 
Stockbridge  Iron  Co.  v.  Mellen,  5  II.,  439. 

A.  Cardose,  opposed. 

COWLES,  J. — Upon  consultation  with  my  brethren,  now  at 
general  term,  we  agree  that  the  motion  should  be  denied. 


NEW-YOKE.  443 


Dusenberry  a.  Woodward. 


The  defendant,  under  the  amendment  to  §  142  of  the  Code, 
providing  that  the  facts  shall  be  stated  without  "  unnecessary 
repetition,"  may  now,  as  we  think,  set  them  out  in  two  sepa- 
rate forms,  provided  there  is  a  fair  and  reasonable  doubt  of  his 
ability  to  safely  plead  them  in  one  mode  only.  But  such 
pleading  will  be  allowed  with  great  caution,  and  only  where 
it  is  very  clear  that  the  nature  of  the  case  renders  it  proper 
and  necessary  to  protect  the  rights  of  the  plaintiff,  and  secure 
him  against  the  danger  of  a  non-suit,  on  the  trial.  The  motion 
is  denied,  without  costs  to  either  party.  Defendant  to  have 
ten  days  to  answer. 


DUSENBERRY  a.  WOODWARD. 

New  York  Superior  Court,  General  Term  /  March,  1855. 
ADMISSION  OF  PART  OF  PLAINTIFF'S  CLAIM. — COMMITTAL. 

That  the  defendant  offered  to  let  plaintiff  take  judgment  for  a  sum  admitted  in  the 
answer  to  be  due,  which  offer  plaintiff  declined,  is  no  reason  for  denying  plain- 
tiffs motion  that  defendant  pay  into  court  the  sum  admitted  to  be  due. 

Sect.  385  of  the  Code,  providing  that  the  defendant  may  offer  to  permit  the  plain- 
tiff to  take  judgment,  was  intended  of  a  compromise,  and  does  not  profess  to 
govern  the  case  of  a  portion  of  a  demand  admitted  in  a  pleading,  which  pleading 
raises  an  actual  litigation  as  to  other  parts  of  the  claim. 

The  case  of  Smith  a.  Knapp,  (4  Sandf.  711),  examined,  and  its  weight  as  authority 
qualified. 

The  history  of  the  practice  of  punishments  as  for  contempts  reviewed. 

Before  the  Code,  an  interlocutory  order  for  the  payment  of  money  admitted  to  be 
due  in  an  answer,  and  which  would  be  enforced  by  commitment,  would  in  general 
be  granted  only  to  enforce  payment  of  moneys  received  or  withheld  in  violation 
of  a  trust,  and  not  of  an  ordinary  debt. 

Under  the  Code,  the  same  rule  exists,  and  an  order  to  pay  money  admitted  to 
be  due  in  a  fiduciary  capacity,  so  that  under  §  179  of  the  Code,  defendant  might 
be  arrested  at  any  time  in  the  action,  may  be  enforced  by  commitment. 

The  cases  of  Meyers  a.  Trimble,  (ante  220  and  399),  and  Merritt  a.  Thompson,  (ante 
223),  dissented  from. 

Where  upon  liquidation  of  a  partnership  concern,  one  partner  receives  assets  and 
expressly  admits  that  a  certain  sum  is  due  to  his  copartner,  he  will  be  treated  as 
holding  it  in  the  character  of  agent  or  trustee. 

But  where  the  partnership  of  D.  and  W.  was  dissolved  in  January,  and  D.  bought 
out  W  's  share,  leaving  the  title  of  certain  lands  in  W.,  as  security  for  pur- 
chase money,  and  in  July  a  new  contract  was  formed  providing  that  W.  should 


444  ABBOTTS'  PEACTICE  KEPORTS. 

Dusenberry  a.  Woodward. 

take  at  an  appraisal  the  lands  he  had  held  as  security,  deduct  his  claim  and  pay 
over  the  balance,  Held,  that  the  balance  admitted  by  him,  after  appraisal,  was  not 
held  in  a  fiduciary  capacity,  and  he  was  not  liable  to  arrest  by  way  of  enforcing 
an  interlocutory  order  for  its  payment. 

Appeal  from  order  that  defendant  pay  into  court  a  part  of 
plaintiff's  claim,  which  he  admitted  in  his  answer  to  be  due. 

The  answer  of  the  defendant  in  this  case,  admitted  a  part  of 
plaintiff's  claim,  and  the  plaintiff  thereupon  obtained  an  order 
at  special  term,  directing  him  to  pay  into  court  the  sum  of 
$4222  47,  with  interest  from  the  date  of  the  order,  or  (upon 
giving  security  for  the  sum  of  $876  65,  in  the  manner  speci- 
fied), to  deduct  that  amount  from  the  above  sum,  and  pay  in 
the  balance  only.  There  are  other  provisions  of  the  order  not 
necessary  to  be  noticed.  The  order  was  made  under  the  244th 
section  of  the  Code,  upon  the  ground  of  an  admission  in  the 
answer  of  part  of  the  plaintiff's  claim  being  just. 

Mr.  Dana,  for  defendant.  Sec.  244  of  the  Code,  applies  only 
to  a  claim  which  is  unconditionally  admitted.  (4  Sand.  673). 

It  was  not  intended  to  change  the  means  of  enforcing  pay- 
ment of  a  money  demand,  and  the  admission  of  a  part  cannot 
give  the  plaintiff  any  greater  right  than  he  would  have  if  the 
whole  cause  of  action  were  admitted.  The  facts  of  the  case 
show  that  the  defendant  should  not  be  treated  as  holding  the 
funds  in  a  fiduciary  capacity. 

There  is  no  equitable  claim  to  the  exercise  of  unusual  power 
by  the  court. 

The  former  decision  of  the  court,  in  4  Sandf.  711,  should 
be  conclusive.  The  same  decision  has  been  reiterated  in  Ryder 
a.  The  Union  India  Eubber  Company,*  not  reported, 

*  The  decision  alluded  to  as  the  case  of  Ryder  a.  The  Union  India  Rubber  Com- 
pany, was  rendered  at  General  Term  of  the  Supeiror  Court,  held  by  Oakley,  Ch.  J. 
Duer.  Hoffman,  and  Bosworth,  J.  J.,  23d  December,  1854.  The  substance  of  the 
opinion  was  as  follows : — 

The  complaint  in  this  suit  contained  two  distinct  causes  of  action.  One  for  goods 
sold  and  delivered — the  other  for  the  recovery  of  money  received  for  goods  sold  and 
delivered.  An  offer  was  made  by  the  defendants  previously  to  the  answer  to  allow 
judgment  for  a  sum  greater  than  was  claimed  in  the  first  count.  This  offer  was 
not  accepted,  and  an  answer  having  been  put  in,  the  case  now  comes  before  the 


NEW- YORK. 


Dusenberry  a.  Woodward. 


Mr.  J.  Burrill)  Jr.,  for  plaintiff.  I.  The  answer  admitted 
that  there  was  due  to  the  plaintiff  the  sum  of  $3848  03,  with 
interest  from  February  25,  1853  ;  and  the  plaintiff  was  enti- 
tled under  sect.  244  of  the  Code  to  an  order  directing  the 
defendant  to  satisfy  that  part  of  the  plaintiff's  demand.  Code, 
§  244,  Roberts  v.  Law,  4  Sand.  56,  642. 

II.  The  principle  claimed  to  be  established  by  "  Smith  a. 
Knapp,"    4    Sand.  711,  that  the  order  will  not  be  granted 
when  an  order  made  before  answer,  has  been  refused,  is  un- 
sound. 

1.  If  the  order  is  accepted,  the  plaintiff  will  be  entitled  to 
judgment,  and  will  not  require  the  aid  of  §  244. 

2.  If  the  effect  of  rejecting  an  offer,  be  to  deprive  the  plain- 
tiff of  this  legal  right  and  to  secure  a  benefit  to  defendant,  it 
is  coercing  the  plaintiff  into  an  acceptance  of  less  than  is  justly 
due,  and  rewarding  the  dishonest  debtor. 

III.  The   offer  differs  widely   from    an    admission    in   the 
answer.     Code,  §  385.    If  the  offer  be  unaccepted,  it  is  deemed 
withdrawn.     It  is  a  conditional  cognovit.     The  admission  in 
the  answer  of  the  justice  of  a  portion  of  the  plaintiff's  claim,  ter- 
minates  all    litigation  as  to  that   portion,  and  can  be  used 
against  the  defendant  in  all  stages  of  the  action. 

IV.  The  practice  of  compelling  the  payment  of  money  into 
court,  when  a  sum  was  admitted  to  be  due,  was  well  settled  in 
the  Court  of  Chancery,  and  the  Code  has  merely  confirmed  the 
practice,  by  legislative  enactment,  and  extended  its  applica- 
tion.    Clarkson  a.  De  Peyster,  Hopk.  274.     Mills  a.  Hansen,  8 
Vesey,  68.     1    Barbour's    Ch.    Prac.   237.      3  DanieVs  Ch. 

Prac.  467. 

V.  The  objection  that  the   order  should   not    be  granted, 
because  the  mode  of  enforcing  it  is  difficult  or  doubtful,  ought 
not  to  have  any  weight. 

court  on  motion,  under  section  244  of  the  Code,  which  provides  that  when  the 
answer  of  the  defendant  admits  part  of  the  plaintiff's  claim  to  be  just,  the  court  on 
motion  may  order  such  defendant  to  satisfy  that  part  of  the  claim,  and  may  enforce 
the  order  as  it  enforces  a  provisional  remedy.  The  court  denied  the  motion  without 
costs,  remarking  that  this  question  in  a  precisely  similar  case,  (Smith  v.  Olssen,  4 
Sandford  Sup.  Ct.,  711),  had  already  been  determined  by  the  court,  and  that  while 
the  mode  of  enforcing  such  an  order  is  unsettled,  the  court  would  under  such  cir- 
cumstances, leave  the  plaintiff  to  his  ordinary  and  ascertained  remedies. 


446  ABBOTTS'  PRACTICE  PwEPORTS. 

Dusenberry  a.  Woodward. 

1.  If  the  plaintiff  has  brought  himself  within  the  Code,  he  is 
entitled  to  his  order. 

2.  If  the  order  cannot  be  enforced,  the  granting  it,  will  not 
injure  the  defendant. 

3.  The  question  as  to  the  mode  of  enforcing  it,  does  not 
arise. 

VI  But  there  is  no  difficulty  in  enforcing  the  order. 

1.  The  Code    says   it  may  be    enforced    as  a  provisional 
remedy.     (Code,  §  244.) 

2.  It  may,  perhaps,  be  enforced  by  execution,  regarding  the 
order  as  a  species  of  judgment. 

3.  If  not  capable  of  being  enforced  by  execution,  it  comes 
within  the  provisions  of  the  statute  relating  to  contempts,  which 
provisions  are  still  in  force.  (1  Duer,  512 ;  2  Rev.  Stats.  534,  §  1, 
Subd.  3.) 

4.  It  is  discretionary  with  the   court  to  punish  the  disobedi- 
ence of  such  an  order,  as   a  contempt,  and  this  discretion  will 
protect  the  party  against  any  abuse  of  the  power. 

5.  Even  if  after  the  attachment  issued,  the  court  were  satis- 
fied that  the  party  could  not  comply  with  the  order,  they  would 
release  him  from  the  order.     (Laws  1843.) 

VII.  The  facts  of  the  case  show  that  the  money  is  due  from 
the  defendant  to  the  plaintiff,  in  the  capacity  of  trustee. 

BY  THE  COURT,  HOFFMAN,  J. — The  action  is  to  adjust 
and  recover  an  amount  alleged  to  be  due  to  the  plaintiff  from 
the  defendant,  upon  the  winding  up  of  a  certain  joint  concern 
relating  to  a  general  law  and  commercial  agency,  and  the 
purchasing  and  selling  lands. 

The  plaintiff  claims  a  balance  of  $4593  to  be  due  to  him. 

The  answer  was  served  on  the  7th  day  of  May,  1853,  and 
it  was  therein  admitted  that  there  was  a  balance  due  to  the 
plaintiff,  of  $3848. 

Accompanying  this  answer  was  a  written  offer  that  the 
plaintiff  might  take  judgment  for  that  amount,  with  interest 
from  the  23d  of  January,  1853,  and  costs,  pursuant  to  section 
385  of  the  Code. 

This  offer  was  not  accepted,  and  an  order  of  reference  was 
made,  which  is  now  in  progress  of  execution. 


NEW-YORK.  447 


Dusenberry  a.  Woodward. 


The  plaintiff  now  moves  for  an  order  that  the  amount  admit- 
ted in  the  answer  to  be  due  shall  be  paid  into  court,  to  satisfy 
part  of  the  demand  of  the  plaintiff,  under  the  244th  section  of 
the  Code. 

It  is  objected,  that  no  such  motion  can  be  made  after  an 
offer  to  allow  judgment  has  been  made  under  the  385th  section 
of  the  Code.  To  support  this  objection,  the  case  of  Smith  a. 
Knapp  (4  Sandf.  Rep.,  711),  is  referred  to. 

In  that  case  the  defendant,  before  answering,  made  an  offer, 
under  the  385th  section,  to  allow  judgment  to  be  taken  for  the 
sum  which  he  afterwards  by  answer  admitted  to  be  due.  Then 
the  motion  was  made  to  compel  him  to  satisfy  the  amount  he 
admitted  to  be  due.  The  court  held  that  it  possessed  the  dis- 
cretionary power  to  refuse  the  application  after  an  implied 
waiver  by  the  plaintiff;  that  the  case  was  one  in  which  it  was 
proper  to  exercise  such  discretion,  and  especially  while  the 
remedy  to  enforce  it  was  not  clearly  settled  under  the  then 
late  amendment  of  the  244th  section,  made  in  1851. 

The  court  has  now  been  called  upon  to  pass  upon  the  effect 
of  that  section  as  amended,  so  far  at  least  as  the  present  appli- 
cation is  concerned,  and  has  given  it  much  attention. 

The  385th  section  provides  for  a  judgment  after  action,  and 
before  trial  or  verdict.  An  offer  in  writing  is  to  be  made  to 
allow  judgment  for  the  sum,  or  property,  or  to  the  effect  spe- 
cified. If  it  is  accepted  within  ten  days,  the  summons,  com- 
plaint and  offer  are  to  be  filed,  and  the  clerk  must  enter  judg- 
ment accordingly.  Here  there  is  an  end  of  the  action.  If  not 
accepted,  the  offer  is  to  be  deemed  withdrawn,  and  cannot  be 
given  in  evidence.  Of  course  it  cannot  be  used  to  affect  the 
defendant  in  his  defence.  It  is  indeed  under  the  Code,  as  if  it 
had  never  been  made,  except  to  settle  the  question  of  costs. 
If  a  less  favorable  judgment  is  obtained  by  the  plaintiff,  he 
pays  costs  from  the  time  of  the  offer.  In  Scheidner  a.  Jacobi, 
in  this  court  (IDuer,  694),  ninety-three  cents  made  the  costs  to 
fall  upon  the  plaintiff. 

It  seems  clear  that  this  section  was  intended  to  promote  and 
regulate  a  compromise  after  action  commenced,  and  did  not 
contemplate  the  case  of  an  admission,  by  answer  or  otherwise, 
of  a  sum  specified,  or  any  other  sum  being  due,  and  a  certain 


448  ABBOTTS'  PRACTICE  REPORTS. 

Dusenberry  a.  Woodward 

litigation  as  to  other  parts  of  the  demand.  It  does  not  speak 
of  a  sum  as  admitted.  It  is  an  offer  to  allow  judgment  to  be 
taken  for  a  certain  sum,  and  it  is  treated  by  Justice  Cady  (7 
How.  Pr.  jR.  456),  as  the  cognovit  actwnem  of  the  old  practice,  in 
a  modified  form.  It  becomes  substantially  such,  if  accepted, 
and  can  be  made,  and  is  in  practice  frequently  made,  the 
means  of  attaining  the  same  objects.  But  certainly  it  does  not 
profess  to  govern  the  case  of  a  portion  of  a  demand  admitted 
in  a  pleading,  which  pleading  raises  an  actual  litigation  as  to 
other  parts  of  the  claim. 

It  is  obvious  that  if  a  case  is  presented  of  an  admission  in 
an  answer,  that  part  of  a  sum  demanded  is  due  without  any 
offer  to  allow  judgment,  the  question  as  to  the  mode  of 
enforcing  an  order  must  arise. 

The  provisions  of  the  Code  which  bear  upon  the  subject  are 
the  following: — The  178th  section  provides  that  no  person 
shall  be  arrested  in  a  civil  action  except  as  prescribed  by  that 
act ;  but  this  provision  shall  not  affect  the  act  to  abolish 
imprisonment  for  debt,  passed  April  26th,  1831,  or  any  act 
amending  the  same ;  nor  shall  it  apply  to  proceedings  for  con- 
tempt. This  section  remains  unchanged  from  the  original 
enactment  in  1848.  (See  1  Code  E.,  N.  8.  210.  6  How. 
Pr.  B.,  241). 

By  the  302d  section  as  amended  in  1851,  in  all  cases  of  com- 
mitment under  this  chapter,  (that  relating  to  supplementary 
proceedings)  or  the  act  to  abolish  imprisonment  for  debt,  the 
person  committed,  may  in  case  of  inability  to  perform  the  act 
required,  or  to  endure  the  imprisonment,  be  discharged  from 
imprisonment  by  the  court  or  judge  committing  him,  or  by  the 
court  in  which  the  judgment  was  rendered,  on  such  terms  as 
may  be  just. 

By  the  Code  of  1848,  as  amended  in  1849,  the  244th  section 
directed,  that,  until  the  legislature  should  otherwise  provide, 
the  court  may  appoint  receivers,  or  direct  the  deposit  of  money 
or  other  things,  and  grant  the  other  provisional  remedies  now 
existing  according  to  the  present  practice,  except  as  otherwise 
provided  in  that  act. 

And  the  provisions  of  the  Revised  Statutes,  "  of  proceedings 
as  for  contempts,"  being  left  in  full  force  by  section  471  of  the 


NEW-YORK.  449 


Dusenberry  a.  Woodward. 


Code,  (see  The  People  a.  Oompton,  1  Duer,  512),  the  result  is, 
that  until  the  amendment  of  section  244,  made  in  1851,  the 
proceeding  to  enforce  payment  of  a  sum  of  money  or  of  costs 
ordered  to  be  paid  before  final  judgment,  was  regulated  by  the 
previous  law  and  practice. 

What  was  that  law  and  practice  ? 

1st.  That  orders  for  the  payment  of  money  into  court  were 
by  the  rule  of  the  English  Court  of  Chancery  and  of  our  own, 
enforced  by  process  of  commitment  for  contempt.  (2  Daniel's 
Pr.  1653.  Needham  v.  Needham,  1  Nare,  633.  Crawley  v. 
Crawley,  3  JBr.  C.  Rep. ;  and  anon,  in  the  Exchequer,  2  Fow- 
ler's Pr.  207). 

2d.  That  such  interlocutory  order  was  only  made  in  cases  of 
the  money  being  received  by  persons  in  a  fiduciary  capacity, 
or  being  held  in  trust,  as  by  executors.  If  the  money  demand 
was  in  the  nature  of  a  debt,  the  court  would  not  interpose  until 
the  hearing.  (Peacharn  v.  Daw,  6  Mod.  Rep.  98.  Lee  v. 
Macauley,  1  Y.  and  Col.  207.  Blake  v.  Blake,  2  Sch.  and 
Lefroy,  26.  Lester  v.  Donald,  1  Jack.  Walk.  253.  And  par- 
ticularly Richardson  v.  The  Bank  of  England,  4  Mylne  and 
Craig )  174.)  Haggerty  v.  Duane,  1  Paige,  321,  was  a  case  of 
admission  of  money  in  hand  by  a  trustee.  Clarkson  v.  De 
Peyster,  1  Hopkins,  374,  was  that  of  a  guardian  defendant. 

Although  the  mode  of  enforcing  an  order  in  England  was 
the  same  as  for  enforcing  a  decree  by  process  for  contempt 
ending  in  a  sequestration,  this  distinction  as  to  the  cases  in 
which  money  would  be  ordered  to  be  paid  in,  was  of  great 
moment,  under  our  statutes  and  rules. 

4th.  The  act  of  February  2d,  1802,  (session  25,  cap.  15,) 
gave  power  to  the  Court  of  Chancery  to  enforce  its  decrees 
by  execution,  either  against  the  body  of  the  person  who  shall 
be  bound  to  perform  the  same,  or  against  his  goods  and  chat- 
tels/ and  in  default  thereof,  against  the  lands  and  tenements 
of  such  person,  to  be  in  such  form  as  the  court  should  from 
time  to  time  direct.  This  act  was  renewed  in  section  4  of 
the  revision  of  1813,  (Vol.  1,  p.  437),  with  the  additional 
provision  that  no  goods,  or  chattels,  lands,  or  tenements, 
should  be  bound  as  against  an  innocent  bonafide  purchaser, 

without   notice,  until  an  actual  levy  or  seizure  made  there- 
29 


450  ABBOTTS'  PRACTICE  REPORTS. 

Uusenberry  a.  Woodward. 

upon.  The  Revised  Statutes  of  1830  contained  the  same  pro- 
vision with  some  modifications.  (2  R.  S.  183,  §  110,  111,  2d. 
ed.)  First,  no  process  should  be  issued  on  any  final  decree, 
until  the  same  should  have  been  enrolled  as  therein  provided. 
Second,  until  an  actual  levy,  no  goods  or  chattels  should  be 
bound  by  execution  as  against  a  purchaser  without  notice. 
Lands  and  tenements  were  omitted.  The  statute  had  provided 
a  system  of  enrolment  and  docketing  decrees,  in  order  to  cre- 
ate a  lien  upon  lands  similar  to  that  of  judgments,  which  did 
not  exist  before. 

5th.  It  is  clear,  that  if  a  case  was  ready  for  hearing,  upon 
bill,  and  answerer  otherwise,  as  in  Peacham  vs.  Dorr,  (6  Mod. 
98),  or  Gilbert  vs.  Colt,  (1  If  of  man's  Pr.  323),  and  there  had 
been  an  admission  of  a  certain  amount  due  by  the  accounting 
party,  the  decree  to  account  could  have  ordered  payment  of 
that  sum  into  court,  while  it  directed  the  adjudication  of  con- 
tested matters  by  a  reference  or  an  issue.  And  the  court  could 
issue  an  execution  to  compel  performance  under  the  statute. 

That  statute,  from  its  first  enactment,  spoke  of  decrees,  not 
final  decrees.  The  revised  act  of  1830,  requires  enrolment  of 
a  final  decree  before  process.  If  enrolment  had  been  neces- 
sary, a  decree  for  an  account,  and  many  mere  orders  were 
capable  of  enrolment,  and  there  might  be  a  succession  of  en- 
rolments. 

Minthorne's  Executors  v.  Tompkins,  (2  Paige,  102),  was  the 
case  of  an  enrolment  of  a  decree  of  dismissal  of  a  bill  as  to 
one  party  ;  and  it  was  held  that  a  subsequent  decree  as  to 
other  parties  could  be  made  by  a  continuance  on  the  record. 
McGregor  v.  Popham,  (4  Hare,  162),  was  a  case  of  an  order 
refusing  a  new  trial  being  enrolled.  See  also  McDermott  v. 
Kirby,  (1  Phillips,  208),  as  to  enrolling  decrees  for  an  account, 
and  Daniels'*  Practice,  Vol.  3,  p.  1000,  &c. 

In  Poillon  v.  Houghton,  (2  Sand.  S.  C.  Rep.,  649,  June, 
1849),  an  order  had  been  made  in  an  equity  suit  overruling  a 
demurrer  with  costs,  and  liberty  to  answer.  A  precept  issued 
to  collect  the  amount  out  of  the  goods  and  chattels.  The 
court  observed  that  before  the  act  of  November,  1847,  such  an 
order  would  have  been  enforced  by  process  of  contempt,  but 
the  sum  is  now  to  be  collected  by  process  in  the  nature  of  an 


NEW-YOKE.  451 


Dusenberry  a.  Woodward. 


execution  against  personal  property.  That  the  provisions  of 
the  Kevised  Statutes  requiring  an  enrolment  before  execution, 
and  the  consequent  rule  of  the  Supreme  Court,  (the  77th),  rela- 
ted to  final  decrees  only.  The  order  in  question  was  purely 
interlocutory,  so  that  no  enrolment  was  necessary.  The  costs 
when  taxed  under  the  present  law  constituted  a  judgment, 
which  was  due  and  payable  like  any  other  judgment  in  a  court 
of  record.  (See  also  McGrath  v.  Yan  Wyck,  3  Sand.,  750). 

By  the  statute  (of  proceedings  as  for  contempt)  the  court 
had  power  to  punish  by  fine  or  imprisonment,  or  either,  any 
neglect,  or  violation  of  duty  in  the  cases  enumerated.  Parties 
to  suits,  and  all  other  persons,  for  the  non-payment  of  any  sum 
of  money  ordered  by  such  court  to  be  placed,  in  "  cases  where 
by  law  execution  cannot  be  awarded  for  the  collection  of  such 
sum."  (2  M.  8.,  534,  §  1,  sub.  3). 

The  4th  section  of  the  same  statute  provided,  that  when  any 
rule  or  order  of  a  court  shall  have  been  made  for  the  payment 
of  costs,  or  any  other  sum  of  money,  and  proof  by  affidavit 
shall  be  made  of  personal  demand  of  such  sum  of  money, 
and  a  refusal  to  pay  it,  the  court  may  issue  a  precept  to  com- 
mit the  person  so  disobeying  to  prison,  until  such  sum  and  the 
costs  and  expenses  of  the  proceedings  shall  be  paid. 

These  several  provisions  being  read  together,  and  in  con- 
nection with  the  third  section,  it  seems  manifest,  that  the  pre- 
cept and  imprisonment  for  non-payment  of  a  sum  of  money 
other  than  costs  ordered  to  be  paid,  could  only  be  permitted 
where  execution  could  not  be  awarded  for  the  collection  of 
the  sum. 

In  Brockway  v.  Copp,  (2  Paige,  578,  Oct.  1831),  there 
was  an  appeal  from  an  interlocutory  order  of  a  vice  chancel- 
lor, refusing  to  modify  an  injunction.  On  appeal,  the  order 
was  reversed,  and  the  complainants  ordered  to  pay  the  costs  of 
the  appeal.  The  chancellor  said,  "  I  have  no  doubt  that  this 
court,  on  an  appeal  from  an  interlocutory  decision  of  a  vice 
chancellor,  may  make  a  decree  respecting  the  costs  on  such 
appeal,  which  will  authorize  the  party  to  enrol  the  same,  and 
to  take  out  execution  against  the  person,  or  the  property  of  the 
party  against  whom  such  costs  are  adjudged.  (See  2  R.  S. 
613,  §  2).  Such  indeed  is  the  practice  of  this  court  in  relation 


452  ABBOTTS'  PRACTICE  REPORTS. 

Dusenberry  a.  Woodward. 

to  costs  awarded  in  the  Court  of  Errors,  on  appeal  from  inter- 
locutory orders  of  the  chancellor.  The  decree  of  the  appellate 
court  in  such  cases,  is  a  final  decree,  so  far  as  respects  the  costs 
awarded  on  the  appeal,  and  those  costs  may  be  collected  on  an 
execution  in  the  usual  manner."  He  adverts  then  to  the  right 
of  the  party  to  proceed  by  attachment  as  for  a  contempt,  and 
adds,  "  I  conclude,  therefore,  that  it  was  optional  with  the 
appellant  in  this  case  to  have  the  decree  of  the  chancellor, 
awarding  costs  on  the  appeal,  enrolled,  and  to  take  out  a,  fieri 
facias,  or  capias  ad  satisfaciendum  thereon,  or  to  apply  for  a 
precept  to  commit  the  party  to  prison  until  the  costs  were 
paid." 

Under  this  decision,  there  was  then  a  concurrent  remedy  by 
execution  or  commitment  in  cases  of  orders  to  pay  costs,  under 
the  fourth  section.  And  under  the  third,  either  the  remedy 
was  exclusively  by  execution  when  it  could  be  awarded  by 
law,  or  was  also  concurrent  in  cases  of  money  directed  to  be 
paid,  other  than  costs. 

On  the  26th  of  April,  1831,  the  act  to  abolish  imprisonment 
for  debt  was  passed.  After  some  contrariety  of  decisions,  (4 
Paige,  347,  12  Wendell,  220,  3  Edwards,  313),  the  chancellor  in 
the  last  case  before  him,  (Hosack-  v.  Rogers,  11  Paige,  603), 
held,  that  no  attachment  could  issue  to  enforce  payment  of 
money  decreed  to  be  paid,  by  a  final  decree.  The  remedy  was 
by  execution.  That  the  remedy  by  process  of  contempt  was 
not  abolished.  That  it  would  be  improper,  however,  for  the 
court  to  evade  the  non-imprisonment  act,  by  resorting  to 
attachment,  or  a  precept  to  commit,  on  a  decree  for  payment 
of  money  only.  The  case  might  be  different  had  it  been  a 
mere  interlocutory  order  of  the  court,  directing  a  justice  who 
admitted  trust  funds  to  be  actually  in  his  possession,  or  under 
his  control,  to  bring  the  same  into  court.  The  reservation  in 
the  second  section  of  the  non-imprisonment  act  would  probably 
extend  to  such  a  case." 

In  this  connection  the  case  of  Yan  "Wezell  v.  Van  Wezell,  (1 
Edws.  113,  and  3  Paige,  38),  may  be  referred  to,  particularly  for 
the  valuable  opinion  of  the  vice  chancellor,  upon  the  construc- 
tion of  the  English  act,  and  of  our  own  statute,  as  to  voluntary 
assignments,  (2  B.  8.  31),  showing  how  fully  process  of 


NEW-YORK.  453 


Dusenberry  a.  Woodward. 


attachment  for  non-pay inent  of  money  was  regarded  as  of  the 
nature  of  an  execution.  (See  also  the  case  of  M.  Williams,  a 
bankrupt,  1  Sch.  &  Lef.^  174,  and  anon  2  Fowler's  Exchq. 
Prac.  107). 

By  an  act  of  the  31st  of  January,  1843,  (Sess.  Laws,  cJi.  9), 
the  20th  section  of  the  statute  as  to  contempts,  was  amended, 
and  contained  a  provision  that  in  all  cases  which  had  arisen, 
or  might  thereafter  arise,  under  the  provisions  of  the  title,  the 
court  or  tribunal  which  ordered  such  imprisonment,  might,  in 
their  discretion,  (in  cases  of  inability  to  perform  the  require- 
ments imposed),  relieve  the  persons  so  imprisoned  in  such 
manner,  and  upon  such  terms,  as  they  shall  deem  just  and 
proper. 

So  far  as  the  process  for  collection  of  costs  was  concerned, 
the  statute  of  24th  of  November,  1847,  (ch.  390),  provided  that 
no  person  should  be  imprisoned  for  the  non-payment  of  inter- 
locutory costs,  or  for  contempt  of  court  in  not  paying  costs, 
(with  certain  exceptions) ;  but  process  in  the  nature  of  &  fieri 
facias  against  personal  property,  might  be  issued  for  the  col- 
lection of  costs  founded  on  such  order  of  court. 

It  may  then  be  assumed  that  prior  to  the  Code,  the  law  in 
our  State  upon  this  subject  stood1  thus.* 

The  interlocutory  order  for  the  payment  of  money  admitted 
to  be  due  in  an  answer,  which  would  be  enforced  by  process 
of  commitment  and  imprisonment,  would  in  general  be  only 
granted  in  cases  of  money  received  or  withheld  in  violation  of 
a  trust.  The  character  of  trust  moneys  must  have  been  im- 
pressed upon  them. 

Where  the  admission  was  of  money  due  as  a  debt  merely  in 
its  general  acceptation,  the  party  was  obliged  to  wait  until  he 
could  bring  on  the  cause  to  a  hearing.  When  so  brought  on, 
a  decree  could  be  made  for  payment.  Even  if  this  was  an 
interlocutory  decree  as  for  an  account,  and  other  matters 
remained  to  be  adjudged  in  the  cause,  the  direction  for  pay- 
ment could  be  enforced  by  an  execution.  No  enrolment  was 
necessary  for  an  execution  in  such  a  case.  If  it  were  neces- 
sary, the  practice  allowed  it  to  be  made. 

The  imprisonment  upon  process  for  collection  of  costs,  was 
abolished  by  the  act  of  1847,  and  &  fieri  facias  against  personal 


454  ABBOTTS'  PRACTICE  REPORTS. 

Dusenberry  a.  Woodward. 

property  substituted.  In  a  few  accepted  cases,  such  process 
was  retained. 

Before  the  act  of  1843,  a  party  imprisoned,  as  a  trustee  for 
example,  for  disobedience  to  an  order  for  payment  of  money 
other  than  costs,  (as  well  as  in  a  case  for  costs),  could  obtain  the 
benefit  of  a  discharge,  if  he  could  be  brought  under  the  provi- 
sions of  the  statute  as  to  voluntary  assignments  by  a  debtor 
imprisoned  on  execution.  And  under  this  act  of  January  31, 
1843,  the  court  might  relieve  a  party  imprisoned  for  non-pay- 
ment of  money,  or  for  any  contempt  of  any  description  what- 
ever, upon  such  terms  as  should  be  deemed  proper.  I  have 
before  observed  that  the  Code,  until  1851,  left  these  laws  and 
process  in  full  force. 

What  is  the  operation  of  the  Code  as  amended  in  1851,  upon 
these  provisions  and  rules  ? 

The  provisions  of  the  244th  section  may  be  thus  analyzed. 

There  must  be  an  admission,  on  a  pleading  or  examination, 
of  possession  or  control  of  the  thing  demanded.  That  must  be 
money  or  some  other  thing  capable  of  delivery.  It  must  be 
held  by  the  party  as  trustee  for  another,  or  belong  or  be  due 
to  another.  Then  the  court  may  order  the  same  to  be  depo- 
sited in  court,  or  delivered  to  the  party,  with  or  without  secu- 
rity, subject  to  its  further  direction. 

This  provision  refers  to  a  thing  capable  of  substantial  pos- 
session and  delivery ;  and  I  apprehend  the  term  money  is  here 
used  in  the  old  legal  acceptation,  as  old  as  the  days  of  Lord 
Coke,  viz.,  gold  and  silver,  or  the  lawful  circulating  medium 
of  the  country.  (Mann  v.  Mann,  1  Johns.  Ch.  7?.,  236). 
This  part  of  the  section  must  mean  money  identified  and  set 
apart,  as  if  it  were  in  a  bag. 

This  construction  is  rendered  more  clear  by  the  next  provi- 
sion of  the  section.  When  the  court  shall  have  ordered  the 
deposit  of  money,  it  may,  besides  punishing  the  disobedience 
as  for  contempt,  make  an  order  requiring  the  sheriff  to  take 
the  money,  and  deposit  or  deliver  it  according  to  the  direction 
of  the  court. 

.The  case  of  an  order  to  pay  money  into  court  must  depend 
upon  the  last  clause  of  this  section,  if  it  is  at  all  covered  by  it. 
It  is  provided,  that  when  the  answer  of  the  defendant  admits 


NEW-YOKE.  455 


Dusenberry  a.  Woodward. 


part  of  the  plaintiff's  claim  to  be  just,  the  court  on  motion  may- 
order  such  defendant  to  satisfy  that  part  of  the  claim,  and 
may  enforce  the  order  as  it  enforces  a  provisional  remedy. 

The  468th  section  of  the  Code  provides  that  all  statutory 
provisions  inconsistent  with  the  act  are  repealed.  By  the 
471st  section  all  existing  statutory  provisions  relating  to  actions 
not  inconsistent  with  the  act  and  in  substance  applicable  to  the 
actions  therein  provided,  are  retained  in  force  ;  and  by  section 
469  the  present  rules  and  practice  of  the  courts  in  civil  actions, 
when  consistent  with  the  act,  are  to  continue  in  force,  subject 
to  the  revision  of  the  courts. 

There  does  not  appear  to  be  any  inconsistency  between  this 
portion  of  the  244th  section  and  these  provisions.  The  lan- 
guage is  not  imperative,  but  implies  a  discretion.  It  may  be 
well  construed  to  mean,  that  when  an  answer  has  admitted 
such  a  claim  as 'would  formerly  have  been  enforced  by  process 
of  contempt,  it  may  be  so  enforced  now  ;  and  when  the  admis- 
sion is  of  such  a  character  as  that  enforcement  could  only  be 
by  execution,  an  execution  must  be  resorted  to ;  and  if  that 
cannot  be  had  until  final  judgment,  the  party  must  wait  until 
he  has  obtained  it. 

The  other  construction  contended  for  is,  that  it  covers  cases 
of  every  character,  so  that  in  an  action  on  two  promissory 
notes,  if  one  is  admitted  to  be  due,  and  the  other  contested, 
such  an  order  resulting  in  imprisonment  might  be  made,  and 
the  anomaly  presented  of  a  committal  upon  intermediate  pro- 
cess for  a  demand,  when  if  the  case  had  gone  to  judgment, 
such  process  would  be  illegal. 

The  judges  of  this  court  cannot  give  such  a  construction  to 
this  clause.  They  decide  as  far  as  this : — That  the  court  may 
on  motion,  under  the  last  clause  of  the  244th  section,  order 
money  to  be  paid  to  the  plaintiff,  or  into  court,  which  is 
expressly  admitted  to  be  due  from  the  party,  and  may  enforce 
the  order  by  process  of  committal,  in  cases  where  the  money 
has  been  received,  or  is  held,  in  a  fiduciary  capacity,  so  that 
as  to  such  demand,  an  order  or  arrest  could  have  been  made 
under  the  179th  section  of  the  Code — such  was  the  case  of 
Buchans  v.  Carey,  (4  Sand.,  S.  Of.,  706-7).  When  the  defendant 
is  in  such  a  fiduciary  situation,  he  can  be  arrested  at  any  time 


456  ABBOTTS'  PRACTICE  BEPORTS. 


Dusenberry  a.  Woodward. 


before  judgment ;  and  execution  may  finally  be  had  against 
his  person.  (§  288). 

"We  have  had  the  opportunity  of  perusing  several  of  the 
opinions  of  the  judges  on  two  cases  in  the  Court  of  Common 
Pleas,  the  one  at  special  and  the  other  at  general  term — Mey- 
ers v.  Trimble,  (1  Allotts1  Pr.  R.,  220,  399),  and  Merritt  v. 
Thompson.  (Ib.  223).  In  the  former,  the  action  was  on  a  pro- 
missory note.  The  defendant  alleged  a  set-off  as  to  part  of 
the  demand,  and  admitted  the  residue  to  be  due — and  the 
order  for  payment  of  that  part  was  made — an  attachment  was 
directed  to  issue  upon  disobedience,  and  an  appeal  was  taken 
to  the  general  term  from  such  order.  The  order  was  affirmed. 

The  view  which  the  learned  judges  took  of  the  Code  was 
this :  that  the  provision  in  question  could  be  reconciled  with 
the  continued  force  of  the  act  abolishing  imprisonment  for 
debt  in  this  way — that  if  it  appear  that  the  debtor  is  unable  to 
pay  the  sum  ordered  to  be  paid,  that  may  be  deemed  a  suffi- 
cient excuse,  when  he  appears  to  answer  for  apparent  con- 
tumacy. 

This  view  leads  to  the  conclusion  that  a  discrimination  is  to 
be  made  between  the  parties  whose  poverty  is  established,  and 
those  who  are  in  affluent  circumstances.  The  latter,  when  his 
property  is  so  situated  as  not  to  be  reached  by  an  execution  at 
law,  could  not  be  imprisoned  upon  a  judgment  for  the  identi- 
cal debt,  for  non-payment  of  part  of  which  he  may  be  impri- 
soned on  this  proceeding.  Undoubtedly  the  non-imprisonment 
act  contains  no  such  difference,  while  by  construing  the  Code 
as  we  have  done,  consistency  is  reached  with  the  law  of  a  Court 
of  Equity,  as  it  existed  before,  and  with  the  provision  in  the 
same  title  relating  to  arrests. 

The  remaining  question  is,  whether  the  case  falls  within  this 
description — and  upon  a  careful  examination  of  the  facts  and 
authorities,  we  consider  that  the  judge  at  special  term  fell  into  an 
error,  in  making  the  order  for  payment  which  is  appealed  from. 

It  need  not  be  disputed  that  where  a  partnership  is  dis- 
solved, and  one  of  the  partners,  by  tacit  permission,  or  express 
agreement,  winds  up  the  affairs,  and  receives  the  assets ;  and 
then  expressly  admits,  that  upon  liquidation  of  the  accounts  a 
given  sum  'belongs  to  his  co-partner,  he  should  be  treated  as 


NEW-YOKK.  457 


Dusenberry  a.  Woodward 


holding  the  same  in  the  character  of  agent  or  trustee.  This 
was  substantially  the  case  of  Koberts  v.  Law,  (4  Sandf. 
642).  That  of  Coursen  v.  Hatnlin,  (2  Duer,  513),  was 
similar.  The  order  at  special  term  directing  the  payment  was 
indeed  reversed  by  the  general  term,  but  upon  the  ground  that 
the  admission  in  the  answer  was  not  sufficiently  explicit.  The 
case  of  Mills  v.  Hanson,  (8  Vesey,  68),  was  also  one  of  a  part- 
nership. 

But  without  an  express  admission  to  this  effect,  a  partner 
collecting  in  the  funds  cannot  be  subjected  to  such  a  motion. 
(Foster  v.  Donald,  Jacobs1  R.  252 ;  Richardson  v.  The  Bank 
of  England,  4  M.  &  Craig,  165). 

The  English  cases  upon  the  whole  subject  are  well  collected 
and  discussed  in  DanieVs  Practice,  1636-1644. 

But  in  the  present  case,  the  partnership  was  dissolved  on 
the  10th  of  January,  1851  ;  the  defendant  then  retired  from 
the  business,  and  sold  out  his  interest  to  the  plaintiff  for  the 
sum  of  $16,500,  with  interest.  The  plaintiff  was  to  continue 
the  business,  taking  the  whole  property  except  that  certain 
real  estate  was  to  be  held  by  the  defendant  as  security  for  the 
purchase  money,  and  until  it  was  paid,  when  he  was  to  trans- 
fer the  same  to  the  plaintiff. 

In  July,  1851,  a  new  agreement  was  entered  into  between 
the  parties,  by  which  the  lands  and  contracts  held  by  him  as 
security  were  to  be  taken  by  him  in  settlement  upon  an  ap- 
praisement ;  the  deficiency  to  be  made  good  by  the  plaintiff, 
and  any  excess  of  value  to  be  paid  by  the  defendant ;  the 
plaintiff  to  pay  the  taxes  and  incumbrances,  and  guarantee  the 
validity  of  the  titles  to  the  lands. 

The  appraisal  was  made  according  to  this  agreement,  and 
the  plaintiff  in  this  complaint,  after  stating  this  amount,  an 
amount  due  upon  the  contract  taken  as  cash,  and  a  sum 
received  by  the  defendant  from  the  assets,  deducts  these  sev- 
eral amounts  from  the  purchase  money,  and  claims  a  balance 
due  of  $4594  63. 

The  defendant  in  his  answer  admits  that  such  balance  is  the 
sum  of  $3848  03.  In  the  affidavit  produced  by  the  defendant 
in  opposition  to  this  motion,  he  claims  only  a  reduction  from 
this  admitted  sum  of  $492  33,  the  sum  of  $376  05,  on  ac- 


458  ABBOTTS'  PRACTICE  REPORTS. 

Jones  a.  Derby. 

count  of  the  failure  of  the  title  of  a  parcel  of  the  land,  and 
the  balance  paid  for  taxes  paid  by  him. 

"We  are  of  opinion  that  the  relation  of  partners  between 
the  plaintiff  and  defendant  was,  by  the  operation  of  these 
agreements,  terminated  and  annulled.  Their  rights  and  lia- 
bilities were  to  be  determined  by  the  contracts,  and  these 
finally  left  the  plaintiff  a  creditor  of  the  defendant  under  the 
sealed  contract  of  July,  1851,  for  the  excess  of  the  lands  and 
contracts,  and  sums  received  by  the  defendant,  over  the  pur- 
chase money  of  the  joint  concern. 

In  this  view,  then,  the  relation  of  mere  debtor  and  creditor 
exists  between  them.  There  is  nothing  of  an  agency,  a  trust, 
or  a  fiduciary  character  in  any  sense  subsisting. 

For  these  reasons  we  think  the  order  was  wrong,  and  must 
be  reversed. 


JONES  a.  DERBY. 

Su/preme  Court,  First  District ;  General  Term,  April,  1855. 
SEKVICE  OF  PROCESS. — RESIDENCE. 

Judgment  and  execution  will  be  set  aside  where,  under  the  "  Act  to  facilitate  the 
Service  of  Process  in  certain  cases,"  (Laws  of  1853,  chap.  511),  service  of  sum- 
mons was  made  at  the  defendant's  residence  and  place  of  business,  New  York, 
while  the  plaintiff  knew  he  was  absent  in  California  on  business. 

Motion  to  set  aside  judgment. 

The  facts  sufficiently  appear  in  the  opinion. 

MOKKIS,  J.— The  evidence  in  this  case  shows  that  defend- 
ant's residence  and  place  of  business  was  in  the  city  of  New 
York,  and  it  was  so  known  to  the  plaintiff  at  the  time  the 
summons  was  served  at  his  place  of  residence,  and  that  it  was 
also  known  that  defendant  was  then  in  California  on  business. 
The  plaintiff's  affidavits,  upon  which  the  order  to  serve  the 
summons  was  granted,  shows  all  these  facts. 

The  act  entitled  "  an  act  to  facilitate  the  service  of  process 
in  certain  cases,"  does  not  apply  to  the  present  case.  In  this 


NEW-YOKE.  459 


The  People  a.  Donnelly. 


case  there  is  no  evidence  that  the  defendant  "  cannot  be 
found,  or  if  found,  avoids  or  evades  such  service." 

This  question  is  ably  considered  by  Harris,  Justice,  in  the 
case  of  Collins  a.  Campfield,  (9  How.  Pr.  E.,  519). 

Judgment  and  execution  set  aside  with  costs,  and  ten  dol- 
lars costs  of  this  motion. 


THE  PEOPLE  a.  DONNELLY. 

Supreme  Court,  First  District  /  General  Term,  February,  1855. 
EVIDENCE.  —  TESTIMONY  OF  CO-DEFENDANT. 

Where  two  are  jointly  indicted,  one  is  not  admissible  as  witness,  either  for  or 
against  the  other,  until  he  has  been  first  acquitted  or  convicted. 

This  rule  is  not  on  the  ground  of  interest. 

Where  one  co-defendant  in  an  indictment  had  been  examined  on  the  trial,  without 
being  previously  discharged  from  the  record,  a  new  trial  was  ordered. 

Motion  for  a  new  trial. 

The  defendant,  Donnelly,  was  indicted  jointly  with  one 
Beales.  On  the  trial,  Beales  was  called  by  the  prosecution, 
and  admitted  as  a  witness  against  Donnelly  ;  but  objected  to, 
as  incompetent.  Donnelly  was  convicted,  and  thereupon 
moved  for  a  new  trial,  on  the  ground  of  error,  in  the  admis- 
sion of  Beales'  testimony. 

«7.  B.  Phillips,  for  the  motion. 

A.  Oakey  Hall,  District  Attorney,  opposed. 

CLEKKE,  J.  —  It  is  well  settled,  and  I  believe  never  ques- 
tioned in  this  State  or  in  England,  that  where  several  persons 
are  jointly  indicted,  one  is  not  a  competent  witness  either  for 
or  against  the  others,  without  being  first  acquitted  or  con- 
victed, and  it  makes  no  difference  whether  the  defendants 
plead  jointly  or  separately.  An  accomplice,  however,  sepa- 
rately indicted,  is  competent.  Whether  there  is  any  good 


460  ABBOTTS'  PRACTICE  REPORTS. 


Tracy  a.  Talmadge. 


reason  for  this  distinction,  it  is  unnecessary  to  inquire  on  the 
present  occasion. 

Beales,  although  a  joint  defendant,  was  admitted  as  a  wit- 
ness against  Donnelly  in  this  case,  without  discharging  him 
from  the  record. 

The  judgment  should  be  reversed,  and  a  new  trial  ordered. 

MITCHELL,  J. — In  Rex  vs.  Rowland  (1  Ryan  and  Moody, 
401),  the  counsel  for  the  crown  moved  to  have  an  acquittal 
against  two  of  the  defendants,  that  he  might  use  them  as  wit- 
nesses. It  was  treated  as  necessary  and  allowed,  (and  see  the 
note  there). 

So  a  case  is  stated  in  Cases  Temp.  Hardwicke,  163,  where 
on  an  information  at  the  suit  of  the  crown  it  was  deemed 
necessary  to  enter  a  nolle  prosequi  against  one  of  the  defend- 
ants, upon  examining  him  against  the  others. 

Our  own  courts  have  decided,  that  one  of  the  defendants  in 
an  indictment  cannot  be  a  witness  for  another.  This  cannot 
be  upon  the  ground  of  interest ;  for  there  is  no  interest  either 
way ;  and  if  it  be  because  he  is  a  party  to  the  record,  it 
applies,  whether  he  be  called  for  the  people  or  his  co- 
defendant. 

Judgment  should  be  reversed,  and  new  trial  ordered. 


TRACY  a.  TALMADGE. 

Supreme  Court,  First  District ;  General  Term,  May,  1855. 
GENERAL  AND  SPECIAL  TERM. — RECEIVERS. 

There  is  but  one  Supreme  Court,  whether  the  judges  holding  it  be  at  general  or 
special  term,  and  powers  conferred  by  statute  may  be  exercised  by  the  court  at 
either  term,  unless  there  be  some  statute  specially  restricting  the  power  of  the  court. 

Where,  under  an  order  of  special  term,  that  the  report  of  referee  be  confirmed, 
unless  cause  to  the  contrary  be  shown  within  eight  days,  a  party  filed  exceptions 
to  the  referee's  finding,  and  an  order  was  entered  that  all  the  proofs  and  testi- 
mony taken  before  the  referee  come  before  the  court  on  the  hearing  of  the  excep- 
tions, and  the  .cause  was  placed  on  the  general  term  calendar  for  hearing,  a  motion 
that  it  be  struck  off,  on  the  ground  that  it  should  be  heard  in  the  first  instance  at 
special  term,  \vas  denied. 


NEW- YOKE.  461 


Tracy  a.  Talmadge. 


The  motion  to  set  aside  the  report  of  the  referees  might  properly  be  made,  either  at 
special  or  general  term,  according  to  convenience. 

A  receiver  appointed  in  an  action  commenced  in  Chancery  and  continued  in  the 
Supreme  Court  in  Equity,  has  the  powers  and  is  subject  to  the  obligations  and 
duties  declared  in  Rev.  Stats.  469,  <J  68  ;  but  a  rule  appointing  referees,  to  which 
such  receiver  gives  his  assent,  should  be  entered,  not  in  the  common  law  courts, 
as  there  required,  but  in  the  Court  of  Equity  by  which  he  was  appointed,  and 
any  appeal  from  the  decision  of  the  referees  is  to  be  heard  there  also. 

Motion  to  strike  cause  from  the  calendar. 

This  action  was  commenced  in  Chancery  against  the  North 
American  Trust  and  Banking  Company.  A  receiver  was 
appointed  and  a  decree  made,  dissolving  the  corporation,  as 
insolvent. 

Subsequently,  the  cause  being  continued  in  the  Supreme 
Court  in  Equity,  the  Bank  of  Liverpool  presented  a  claim,  and 
an  order  was  entered  appointing  referees  to  examine  and 
report  concerning  the  same.  Their  report  was  filed  in  the 
same  court,  and  the  counsel  for  the  claimant  filed  exceptions 
to  the  report,  and  moved  at  general  term  to  set  it  aside. 

On  the  hearing  of  the  motion,  although  both  parties  had 
placed  the  cause  upon  the  general  term  calendar,  the  counsel 
of  the  receiver  moved  to  strike  it  off  the  calendar,  upon  the 
ground  that  it  must  first  be  heard  at  special  term. 

H.  P.  Dodge,  for  receiver. 
Charles  Edwa/rds,  for  claimants. 

MITCHELL,  C.  J. — An  order  was  made  in  the  above  cause  by 
.the  Chancellor,  31st  August,  1841,  appointing  a  receiver  of 
the  property  of  the  Bank,  and  a  decree  was  made  by  him  on 
19th  June,  1843,  dissolving  the  corporation.  The  Bank  of 
Liverpool  after  that  presented  its  claim  against  the  banking 
company,  and  an  order  of  this  court,  sitting  in  equity,  was 
made  31st  January,  1849,  appointing  referees  to  examine  into 
the  claim,  and  to  report  upon  the  validity  and  amount  thereof 
to  this  court,  that  is,  to  the  same  court  in  equity.  The 
referees  made  their  report  on  2d  June,  1853,  and  on  the  motion 
o£  the  attorney  for  the  receiver,  an  order  was  entered  at  spe- 
cial term  in  equity,  and  under  the  above  title,  that  the  report 


462  ABBOTTS'  PRACTICE  EEPORTS. 

Tracy  a,  Talmadge. 

be  confirmed,  unless  cause  to  the  contrary  should  be  shown  in 
eight  days.  The  claimants  then  filed  exceptions,  and  an  order 
was  entered  October,  1853,  at  special  term,  that  all  the  proofs 
and  testimony  taken  before  the  referees  come  before  the 
court  on  the  hearing  of  the  exceptions,  in  the  shape  of  a  spe- 
cial report  of  referees,  or  in  the  form  of  a  case.  All  the 
above  orders  were  made  under  the  above  title,  and  in  equity  : 
none  of  them  in  the  matter  of  the  claim  of  the  Bank  of  Liver- 
pool vs.  Leavitt,  receiver,  as  would  be  proper,  if  the  reference 
were  under  the  statute  as  to  insolvents. 

The  cause  has  been  placed  on  the  general  term  calendar  by 
both  parties  since  the  last  order  was  made,  and  is  now  reached 
in  its  order,  and  the  counsel  for  the  receiver  moves  to  strike  it 
from  the  calendar,  on  the  ground  that  it  must  first  be  heard  at 
special  term. 

The  constitution  does  not  prescribe  what  are  the  respective 
duties  of  the  special  term,  and  the  general  term.  The  judi- 
ciary act  and  the  Code  in  some  few  instances  have  directed 
that  certain  matters  should  be  heard  at  the  one  term,  and  some 
at  the  others ;  but  neither  of  those  statutes,  nor  any  other 
statute  has  laid  down  any  general  rule  defining  the  specific 
duties  of  the  Supreme  Court  at  either  of  those  terms. 

By  the  Code  of  1849,  it  was  understood  that  a  bill  of  excep- 
tions from  the  circuit  could  be  heard  only  at  the  general  term^ 
and  not  at  the  special.  By  the  amendment  made  in  1851 
(§  265),  motions  for  a  new  trial,  not  only  on  bills  of  exceptions 
but  on  a  special  verdict,  or  case  reserved,  or  case  made,  were 
to  be  heard  at  the  special  term  only,  unless  the  justice  trying 
the  cause  should  direct  it  to  be  heard  in  the  first  instance  at 
the  general  term. 

The  amendment  in  1852  directed  these  motions  to  be  heard 
first  at  the  circuit  or  special  term,  except  that  when  exceptions 
were  taken,  the  judge  trying  the  cause  might  direct  the  motion 
to  be  heard  first  at  the  general  term — and  that  when  questions 
of  law  only  were  presented  by  the  case  made  at  the  trial,  the 
judge  trying  the  cause  might  make  a  like  order  (§  265).  The 
same  rule  probably  applied  to  trials  by  the  court  under  the 
law  of  1851,  (§  268) ;  but  in  1852,  section  268  was  so  amended 
that  the  review  was  to  be  at  the  general  term  only. 


NEW-YOKK.  463 


Tracy  a.  Talmadge. 


This  variableness  in  the  law,  and  this  want  of  uniformity  of 
purpose  at  any  one  time,  as  to  the  class  of  cases  to  be  heard  at 
either  term,  show  that  there  was  never  any  definite  purpose  in 
our  legislature  that  all  matters  in  the  nature  of  an  appeal 
should  be  first  heard  at  the  general  term,  or  that  all  matters 
not  of  that  character  should  be  heard  at  the  special  term 
only. 

There  is  but  one  Supreme  Court,  whether  the  judges  holding 
it  be  at  general  or  special  term :  and  powers  which  by  statute 
are  granted  to  the  Supreme  Court,  may  be  exercised  by  the 
court  at  either  term,  unless  there  be  some  statute  specially 
restricting  the   court.     The   practice  has   conformed  to  this 
view.     The  motions  to  confirm  the  report  of  commissioners  on 
opening  streets  were  frequently,  if  not  generally,  made  at  first 
at  the  general  term,  and  continued  to  be  so  made  until  the 
court  finding  that  they  occupied  too  much  of  the  time  of  the 
general  term,  directed  them  to  be  heard  at  special  term  :  and 
there  was  some  reluctance  at  first  to  comply  with  this  order, 
under  the  apprehension  of  counsel  that  the  general  term  only 
had  jurisdiction  of  these  motions.     So  the  general  term  has 
granted  a  mandamus,  and  the  special  term  has  quashed  it,  as 
not  containing  in  its  face  any  cause  of  action,  and  so  being 
improvidently  issued.     If  the  special  term  should  seem  to  any 
to  have  gone  beyond  the  principle  of  a  rule  lately  adopted, 
that  the  special  term  shall  not  open  a  default  entered  at  the 
general  term,  the  case  shows,  what  alone  is  material  to  this 
case,  the  powers  of  the  general  term.     Writs  of  error  in  crimi- 
nal cases  are  to  be  heard  before  the  Supreme  Court.    (2  Rev. 
Stat.j  741,  §  24).    They  are  always  heard  at  general  term. 
When  for  any  reason  any  convict  sentenced  to  the  punishment 
of  death,  has  not  been  executed  pursuant  to  sentence,  and  the 
same  still  stands  in  force,  "  the  Supreme  Court"  is  to  cause 
him  to  be  brought  before  the  court,  and  if  no  legal  reasons 
exist  against  the  execution  of  the  sentence,  they  are  to  sign  the 
warrant  for  the  execution  at  some  future  day.     (2  Rev.  Stat., 
659,  §§  23,  24).     Such  a  case  has  occurred  in  this  district,  and 
the  matter  was  heard  at  general  term.     Motions  to  set  aside 
the  award  of  arbitrators,  and  to  set  aside  the  report  of  referees, 
were  always  made  at  the  general  term,  and  in  the  class  of  enu- 


464  ABBOTTS'  PEACTICE  EEPOKTS. 

Tracy  a.  Talmadge. 

merated  motions,  when  founded  on  the  merits.  The  general 
term,  under  the  old  system,  had  the  power  to  hear  this  case, 
and  all  others  of  the  like  kind,  and  there  is  no  law  taking  any 
such  power  from  it ;  it  must  therefore  remain  with  it. 

The  receiver  in  this  case  was  appointed  under  sections  40, 
41,  42,  of  2  Rev.  Stats.,  464.  The  last  section  gives  him  all  the 
powers  and  authority  conferred,  and  declares  him  subject 
to  all  the  obligations  and  duties  imposed  (in  Art.  3  of  that  title, 
viz. :  pt.  3,  ch.  8,  tit.  4),  upon  receivers,  appointed  in  case  of 
the  voluntary  dissolution  of  a  corporation.  The  title  referred 
to,  is  2  Rev.  Stats.,  469,  §  68,  and  declares  that  the  receiver 
shall  have  all  the  power  and  authority  conferred  by  law  upon 
trustees,  to  whom  an  assignment  of  the  estate  of  insolvent  debt- 
ors may  be  made,  pursuant  to  the  provisions  of  ch.  5  of  part  2  of 
the  Rev.  Stats.  The  whole  of  ch.  8,  of  part  3,  of  the  Rev. 
Stats.,  (except  titles  2  and  12) ;  and  also,  ch.  5,  of  part  2, 
of  the  Rev.  Stats.,  are  retained  by  §  471,  of  the  Code.  Ch.  5, 
part  2,  of  the  Kevised  Statutes  (2  Rev.  Stats.,  p.  45,  §  19,  <&c.\ 
contains  provisions  for  the  reference  of  claims  of  creditors  of 
an  insolvent,  when  a  controversy  arises  between  such  creditors 
and  the  trustees  of  the  insolvent,  and  directs  the  matter  to  be 
referred  to  those  persons  who  may  be  agreed  upon  by  the 
trustees  and  the  opposite  party,  in  writing ;  or  to  be  selected 
otherwise,  as  the  act  directs.  The  written  agreement  (by  sec- 
tion 23),  is  to  be  filed  in  the  office  of  the  clerk  of  the  Supreme 
Court,  when  the  trustees  were  appointed  for  concealed  or  non- 
resident debtors,  under  Art.  1  of  that  chapter  ;  or  in  the  court 
of  Common  Pleas,  when  the  trustees  were  appointed  under 
any  other  article  of  that  title ;  and  a  rule  was  thereupon  to  be 
entered,  appointing  the  persons  so  selected  to  determine  the 
controversy.  Those  referees  have  the  same  powers  and  are 
subject  to  the  like  rules  and  obligations  as  referees  appointed 
by  the  Supreme  Court,  in  personal  actions  ;  and  their  report  is 
to  be  filed  in  the  same  office  where  the  rule  of  their  appoint- 
ment was  entered,  and  is  conclusive  on  the  parties,  if  not  set 
aside  by  the  court.  (2  Rev.  Stats.,  45,  §§  23,  24,  25). 

It  is  doubtful  whether  these  provisions  can  strictly  apply  to 
proceedings  under  this  law.  The  section  last  quoted  provided 
for  referees  only  in  two  cases ;  one  when  the  trustees  were 


NEW-YORK.  4G5 


Tracy  a.  Talmadge. 


appointed  under  one  article  of  the  insolvent  law,  and  the  other 
when  they  were  appointed  under  the  other  article  of  the  same 
law,  and  requires  the  referees  to  be  appointed  by  rule  in  the 
common  law  courts,  not  in  the  Court  of  Chancery  ;  and  that 
they  determine  the  controversy  (§  23).  Under  those  sections 
it  is  essential  that  the  trustees  enter  the  rule  of  reference  in 
the  Supreme  Court  or  the  Court  of  Common  Pleas,  according 
as  they  are  appointed,  under  one  article  of  the  law,  or  the 
other.  The  receiver  is  not  appointed  under  either  article,  and 
so  cannot  strictly  comply  with  either.  But  as  the  proceeding 
under  which  he  is  appointed,  and  the  analogous  ones  under 
which  he  derives  his  powers,  are  both  instituted  in  the  Court 
of  Chancery,  (2  Rev.  Stats.,  462,  §  31,  and  467,  §  58,  cfec.),  and 
he  thereby  becomes  an  officer  of  that  court,  and  amenable  to 
its  control,  it  is  fairly  to  be  inferred,  that  the  order  for  a  refer- 
ence to  which  he  gives  his  assent  is  also  to  be  made  in  the  same 
court ;  and  any  appeal  or  exception  to  be  taken  from  the  decision 
of  the  referee  is  to  be  heard  there  also,  and  according  to  its  rules. 

Such  was  the  understanding  of  those  who  have  heretofore  had 
charge  of  this  cause,  and  they  entered  the  order  of  reference  in 
equity  and  not  on  the  law  side  of  the  court,  in  January,  1849, 
and  filed  the  report,  and  entered  an  order  of  confirmation  nisi  • 
and  to  that  report,  in  due  time,  the  complain  ant  filed  his  excep- 
tions. The  mode  of  entitling  all  the  papers  conforms  to  this 
view.  It  can  hardly  be  doubted,  that  under  the  old  system  the 
Chancellor  and  not  the  Supreme  Court  or  Court  of  Common  Pleas, 
would  be  the  proper  tribunal  to  hear  this  matter  in  controversy. 

The  slight  exposition  above  made  of  the  respective  duties  of 
the  special  term  and  general  term,  show  that  there  is  nothing 
necessarily  to  prevent  the  motion  to  set  aside  the  report  of  the 
referees  from  being  heard  at  either  term.  It  is  a  matter  of  con- 
venience only.  Here  it  is  understood  that  both  parties  mean 
to  go  to  the  Court  of  Appeals,  so  that  they  must  come  here  now 
or  at  some  other  time.  If  the  analogy  of  the  Code  is  followed, 
the  report  of  the  referees  may  be  considered  as  so  far  binding 
that  the  only  appeal  from  it  is  to  the  general  term. 

Under  the  circumstances,  it  is  most  convenient  to  have 
the  case  heard  at  general  term,  without  sending  the  parties 
first  to  the  special  term.  The  motion  to  strike  the  cause  from, 
the  calendar  is  therefore  denied. 


466  ABBOTTS'  PRACTICE  REPORTS. 

Phoenix  a.  The   Commissioners  of  Emigration. 


PH(ENIX  a.  THE  COMMISSIONERS  OF  EMIGRATION. 

New  York  Superior  Court  y  Special  Term,  May,  1 855. 

INJUNCTION. — RESTRAINT  OF  NUISANCE. 

Where  a  deed  contained  a  covenant  on  the  part  of  the  grantor,  a  municipal  corpo- 
ration, that  certain  vacant  lands  in  the  vicinity  of  the  demised  premises  called 
the  Battery,  should  never  be  appropriated  by  them  or  their  successors  to  private 
uses,  held  that  this  covenant  did  not  operate  upon  lands  subsequently  added  to 
the  battery  by  the  corporation. 

Injunction  will  issue  to  restrain  the  State  or  a  municipal  corporation  from  main- 
taining a  nuisance  on  their  lands. 

Injunction  should  not  be  issued  unless  the  thing  sought  to  be  prohibited  is  in  itself 
a  nuisance.  If  the  thing  to  be  enjoined  is  not  in  itself  noxious,  and  the  risk  of 
the  anticipated  injury  is  not  imminent,  the  court  may  refuse  to  interfere  until 
the  matter  has  been  tried  at  law. 

An  immigrant  depot  is  not  a  known  nuisance  in  the  law. 

A  stronger  case  must  be  made  out  where  the  ground  of  the  injunction  is  anticipated 
depreciation  of  the  value  of  neighboring  property,  than  where  it  is  injury  to  the 
health  of  the  neighborhood. 

Order  to  show  cause  why  injunction  should  not  be  made 
perpetual. 

The  commissioners  of  emigration  of  New  York  city  leased 
from  the  corporation  the  premises  known  as  Castle  Garden,  to 
be  used  as  a  depot  or  station  for  the  landing  of  emigrants.  The 
plaintiff  on  behalf  of  himself  and  others,  land  owners  in  the 
neighborhood,  obtained  a  temporary  injunction  against  the 
defendants.  His  complaint  alleged  that  the  contemplated  use 
of  the  premises  was  a  violation  on  the  part  of  the  corporation 
of  their  covenants  in  regard  to  the  use  of  the  Battery,  con- 
tained in  the  corporation  deeds  of  neighboring  lands  under 
which  plaintiff  claimed  title.  Further,  that  if  the  place  were 
put  to  the  intended  use,  there  was  reason  to  believe  that  con- 
tagious diseases  would  be  generated  and  spread  in  the  neigh- 
borhood. And  that  the  vicinity  of  a  source  of  noxious  and 
disagreeable  odor  would  depreciate  the  value  of  property. 

These  allegations  were  supported  by  affidavits  on  the  part 
of  the  plaintiff,  and  denied  and  qualified  by  a  large  number 
.of  affidavits  on  the  part  of  the  commissioners. 


NEW-YORK.  467 


Phoenix  a.  The   Commissioners  of  Emigration. 


Messrs.  Cutting  and  Perry,  for  Plaintiff. 
The  Attorney  General  and  Mr.  Devlin,  for  the  Commission- 
ers of  Emigration. 

Mr.  Anderson,  for  Henry  R.  Concklin. 

Mr.  R.  J.  Dillon,  for  the  Mayor,  &c.,  of  New  York. 

HOFFMAN,  J. — The  case  is  to  be  considered  in  two  aspects : 
First,  in  relation  to  particular  statutes  and  conveyances,  under 
which  the  plaintiff  insists  that  he  and  those  similarly  situated 
with  him,  possess  an  absolute  right,  as  owners  of  property,  to 
have  the  intended  use  of  Castle  Garden  prohibited.  Second, 
in  relation  to  the  general  law  governing  the  court  in  inter- 
fering with  parties  whose  acts  amount  to  nuisances,  or  tend  to 
such  consequences,  endangering  property,  health  or  comfort, 
as  are  equivalent  to  nuisances. 

I.  As  to  the  particular  rights  of  the  plaintiffs  as  owners  of 
property  in  the  vicinity  : — 

1.  The  land  upon  which  Castle  Garden  stands,  as  well  as 
the  Battery,  as  it  was  at  any  period  defined,  did  not  pass  to 
the  corporation  of  New  York  under  the  Montgomery  charter 
by  the  grant  of  the  four  hundred  feet  into  the  river.     The 
lines  of  that  grant  expressly  exclude  these  premises.     There 
was  also  a  reservation  of  Fort  George,  "  and  the  ground,  full 
boundaries,  and  extent  thereof,  or  thereto  belonging," 

2.  The  act  of  the  16th  of  March,  1790,  in  the  second  sec- 
tion, gave  to  the  corporation  all  the  lands  belonging  to  the 
people  of  the  State,  within  the  limits  described,  as  well  as  all 
the  lands  within  such  limits  claimed  by  the  corporation,  except 
the  lands  reserved  in  the  first  section.     The  exception  was  the 
ground  fronting  the  Bowling  Green,  arid  running  to  the  rear 
of  the  lots  fronting  on  Pearl-street,  which  it  is  here  sufficient 
to  indicate  as  the  government  house  grounds.     The   recital 
shows  that  the  intention  was  to  convey  Fort  George,  and  the 
battery  adjacent  thereto.     The  corporation  was  to  hold  the 
premises  "for  the  purpose  of  erecting  public,  buildings  and 
works  of  defence  thereon,  but  without  any  power  to  dispose 
of  the  same  for  any  other  iise  or  purpose  whatever,  and  with- 
out any  power  of  selling  any  part  thereof." 

In  1791,  a  map  was  made  by  J.   Goerck,  city  surveyor, 
which  shows  the  line  of  the  Battery  as  it  then  existed,  and  as 


468  ABBOTTS'  PKACTICE  REPORTS. 

Phoenix  a.  The   Commissioners  of   Emigration. 

it  indeed  continued  until  after  1821.  It  will  be  noticed  that 
its  general  course  was  nearly  straight,  with  the  exception  of  a 
bastion  near  the  northerly  end,  which  projected  irregularly  to 
the  westward  of  the  line.  It  will  also  be  noticed  that  the 
whole  of  Castle  Garden,  and  of  the  bridge  leading  to  it,  are 
outside,  or  to  the  westward  of  this  line.  This  is  shown  upon 
the  same  map,  in  connection  with  the  outline  of  a  survey  made 
by  Bridges,  surveyor  in  1807,  and  traced  upon  it. 

3.  The  grant  by  the  corporation  to  the  government  of  the 
United  States,  of  the  17th  of  Nov.,  1807,  comprises  two  parcels 
of  ground  : — First,  an  oblong,  described  by  metes  and  bounds 
of  310  feet,  and  300  on  its  westerly  and  easterly  sides,  and  200 
feet  and  125  feet  on  its  northerly  and  southerly  sides.  The  map 
of  Goerck,  with  the  additions,  exhibits  this  parcel  distinctly. 

A  careful  examination  of  the  map  shows  that  a  portion  of 
this  oblong  was  outside,  that  is,  to  the  westward  of  the  limits 
of  the  grant  in  the  statute  of  1791.  It  was  beyond  the  bas- 
tion. But  another  portion  of  such  oblong  was  within  the  statu- 
tory grant,  for  it  comprised  the  bastion,  as  it  is  shown  on  the 
map  of  Goerck.  Although  the  lines  are  not  run  particularly, 
there  can  be  no  doubt  that  the  bastion  passed  under  the  statute. 
The  first  portion,  then,  of  this  transfer  to  the  United  States 
comprised  one  parcel  of  land  clearly  belonging  to  the  corpo- 
ration, and  another  parcel,  the  title  to  which  is  not  clear.  The 
dimensions  of  the  whole  parcel  may  be  roughly  stated  at  49,000 
superficial  feet ;  the  parcel  the  title  to  which  is  not  traced,  at 
about  30,000. 

But  the  next  clause  of  the  conveyance  of  1807  grants  all 
the  right,  title  and  interest  of  the  corporation  "  to  all  that 
water  lot,  vacant  ground,  and  soil  under  water,  to  be  made 
land,  and  gained  out  of  the  Hudson  river,  of  the  breadth  of 
three  hundred  feet,  lying  on  a  course  south  sixty-four  degrees 
west,"  adjoining  the  other  parcel  of  ground.  The  length  into 
the  river  is  left  indefinite. 

The  habendum  of  this  conveyance  is  that  the  premises  are 
to  be  held  for  the  uses  and  purposes  described.  These  purposes 
are  expressed  in  the  reservation,  viz :  "  For  constructing  and 
erecting  of  fortifications  for  the  defence  of  the  port  and  har- 
bor of  New  York."  The  condition  expressed  in  the  convey- 
ance is,  that  if  at  any  time  hereafter,  the  premises  should 


NEW-YORK.  469 


Phoenix  a.  The   Commissioners  of  Emigration. 


cease  to  be  used  for  the  purposes  of  fortifications,  or  for  any 
other  purposes  in  which  the  public  may  be  immediately  inter- 
ested, then  the  premises  should  revert  to  and  re-invested  in  the 
mayor,  aldermen,  &c.,  and  they  should  and  might  enter  upon 
the  same  as  of  their  former  estate. 

4.  The  attention  of  the  counsel  was  called  to  the  statement 
in  the  treatise  upon  the  estate  of  the  corporation  of  New  York, 
that  commissioners  of  the  State  had  ceded  the  land  under 
water  to  the  United  States,  and  some  searches  were  made  to 
trace  this  cession,  but  ineffectually. 

It  was  observed  that  as  the  corporation  did  not  appear  to 
have  a  particle  of  title  to  the  land  under  water,  secondly  de- 
scribed in  their  conveyance,  it  was  not  to  be  imagined,  that 
the  United  States  would  have  been  content  with  that  mere 
quit  claim  of  an  assumed  interest.  The  following  statutes, 
however,  explain  the  history  of  the  title  very  satisfactorily : — 

By  an  act  of  the  20th  of  March,  1807,  the  governor,  lieu- 
tenant-governor, chancellor  and  others,  were  appointed  commis- 
sioners to  declare  the  assent  of  the  legislature  to  the  cession  of 
lands  on  Staten  and  Long  Island  to  the  jurisdiction  of  the 
United  States,  for  purposes  of  defence.  (Sess.  laws,  1807,  ch.  51). 

By  an  act  of  the  18th  of  March,  1808,  the  commissioners 
appointed  under  the  former  act  had  their  powers  extended  to 
lands  in  the  city  and  county  of  New  York,  and  to  lands 
covered  with  water  in  said  city  and  county  of  New  York,  pro- 
vided that  the  cessions  to  be  made  of  such  lands  should  be 
necessary  for  the  defence  and  safety  of  the  city  of  New  York. 
(Sess.  laws,  1808,  ch.  51).  By  the  4th  section  of  this  act,  such 
commissioners  were  empowered  to  grant  to  the  United  States, 
for  the  purpose  of  providing  for  the  defence  of  the  city,  the 
use  of  any  of  the  lands  and  waters  belonging  to  the  people  of 
the  State,  in  the  said  city  and  county  of  New  York,  which 
lands  shall  be  granted  on  the  express  condition  of  their  revert- 
ing to  the  people  of  this  State  in  case  they  are  not  applied  to 
the  purposes  aforesaid.  (See  also  an  act  for  the  extending  of 
Bridge-street  to  the«Battery,  passed  April  8,  1808,  chap.  168). 

It  appears  from  the  Revised  Statutes  of  1830,  (Vol.  1,  p.  68), 
that  a  deed  of  cession  was  made  by  these  commissioners,  dated 
the  6th  of  July,  1808,  of  the  parcel  of  ground  at  the  foot  of  Hu- 
bert-street, and  of  a  portion  of  the  premises  now  in  question. 


470  ABBOTTS'  PEACTICE  PwEPORTS. 

Phoenix  a.  The    Commissioners  of   Emigration. 

The  deed  of  cession  is  stated  to  be  in  the  Secretary  of  State's 
office. 

The  boundaries  of  this  cession  are  very  particular.  The 
point  of  beginning  is  the  same  as  in  the  re-lease  from  the  cor- 
poration. The  easterly  line  is  the  same ;  so  is  the  course  of 
the  northerly  line ;  but  the  depth  into  the  river  is  500  instead  of 
200  feet ;  the  length  on  the  westerly  side  is  the  same,  a<nd  on 
the  southerly  the  depth  is  425  feet,  instead  of  125. 

We  thus  see,  that  from  the  same  base  line  at  the  eastward, 
the  line  of  the  cession  by  the  State  ran  500  feet  into  the  river 
— that  of  the  corporation  200  feet.  The  latter  line  ran  to  a 
point  upon  the  bridge,  about  one-third  from  its  commencement. 

The  cession  by  the  State  contained  a  provision  that  the 
United  States  were  to  retain  the  use  and  jurisdiction  so  long 
as  the  two  tracts  should  be  respectively  used  and  applied  to 
the  purposes  of  defence  and  safety  to  the  city  and  port  of  New 
York,  and  no  longer. 

An  obscurity  exists  as  to  the  ground  of  the  claim  of  the 
corporation  to  run  200  feet  into  the  river.  The  State  did  not 
concur  in  it. 

But  supposing  the  claim  well  founded,  we  have  then  the 
United  States  holding  the  property  under  a  cession  of  the  use 
and  jurisdiction,  not  the  fee,  from  the  State,  for  the  westward- 
ly  three  hundred  feet,  and  under  a  transfer  from  the  city  for 
the  residue,  with  a  clause  of  reverter  upon  its  disuse. 

5.  In  this  situation  the  act  of  the  27th  of  March,  1821,  was 
passed.  The  corporation  was  authorized  to  extend  that  part 
of  the  city  usually  called  the  Battery  into  the  river  six  hun- 
dred feet,  and  all  the  title  of  the  people  of  the  State,  in  and 
to  the  land,  and  land  under  water,  in  front  of  and  adjoining 
to  the  said  Battery  for  that  distance,  was  vested  in  the  mayor 
and  commonalty,  "  to  remain  for  the  purpose  of  extending 
such  Battery  for  a  public  walk,  and  for  erecting  public  build- 
ings and  works  of  defence  thereon  ;  but  without  any  power  to 
dispose  of  the  same  for  any  other  use  or  purpose  whatsoever, 
and  without  any  power  of  selling  it,  or  a%  part  of  it."  Under 
this  act,  the  reversionary  right  of  the  State  to  the  land  under 
water  on  which  the  castle  stands,  and  to  most  of  that  over 
which  the  bridge  ran,  thus  passed  to  the  corporation  upon  the 
tenure  expressed. 


NEW-YORK.  471 


Phoenix  a.  The    Commissioners  of  Emigration. 


6.  We  thus  arrive  at  the  consideration  of  the  act  of  congress, 
of  March  30,  1822.     The  President  of  the  United  States  was 
authorized  to  cause  the  works  to  be  dismantled  and  disposed 
of,  and  to  reconvej  to  the  corporation  the  tract  of  land  grant- 
ed by  them.     This  operated  upon  the  parcel  first  described  in 
the  conveyance  from  the  corporation,  and  restored  that  body 
to  the  rights  it  possessed  in  1807.     The  express  condition  of 
the  cession  by  the  State  would  have  reinvested  the  people  with 
their  original  right  and  title  but  for  the  act  of  1821,  before 
noticed.     The  effect  of  that  act  of  1821,  was  to  substitute  the 
corporation  for  the  State. 

But  the  corporation  purchased  the  materials  of  Castle  Clin- 
ton from  the  United  States,  and  possession  of  the  whole  of  the 
premises  was  delivered  to  it  by  General  Scott,  on  behalf  of  the 
government,  about  the  16th  of  June,  1823.  (See  resolution  of 
that  date).  The  city  has  continued  in  possession,  used,  and 
leased  it,  with  the  occupation  of  the  bridge,  from  that  time  to 
the  present,  for  its  own  benefit  and  profit. 

7.  The  operation  of  the  act  of  May  25,  1812,  and  that  of 
April  13,  1813,  with  the  sale  in  1815,  by  the  corporation,  of 
the  government  house  grounds,  and  the  Covenants  in  their 
deeds  to  Jon.  Hone  and  others,  is  next  to  be  examined.     The 
plaintiff  claims  under  one  of  these  deeds.     The  covenant  is 
"  that  the  vacant  grounds  belonging  to  the  parties  of  the  first 
part,  in  the  vicinity  of  the  premises  hereby  granted,  commonly 
called  the  Battery  and  Bowling  Green,  shall  never  be  appro- 
priated by  the  parties  of  the  first  part  or  their  successors  to 
private  uses."     This  covenant  extended  to  the  Battery  as  it 
then  existed,  and  no  further.     Goerck's  map  of  1791  defined 
the  limits,  pursuing  the  boundaries  of  the  act  of  1790.     The 
covenant  did  not  cover  an  inch  of  the  ground  now  in  question. 
The  Battery,  as  then  defined,  was  much  to  the  eastward  of  that 
ground.     Castle  Clinton — all  the  premises  now  in  question — 
were  in  the  possession  of  the  United  States,  and  might  have 
been  held  by  them  in  absolute  ownership  forever.  I  am  clearly 
of  opinion  that  the  covenant  cannot  be  extended  to  any  land 
beyond  the  known  limits  of  the  Battery  in  1815. 

8.  The  lease  to  Allen  for  the  premises  in  question,  dated  the 
23d  of  March,  1854,  comprises  a  parcel  of  ground  described 
"  as  all  that  certain  piece  or  parcel  of  land  situate  in  the  first 


472  ABBOTTS'  PRACTICE  REPORTS. 

Phoenix  a.  The   Commissioners  of  Emigration. 

ward  of  the  city  of  New  York,  on  the  North  or  Hudson  river, 
near  the  west  end  of  the  Battery,  and  on  which  the  building 
erected  for  a  fortification,  and  heretofore  known  as  Castle 
Clinton,  and  now  as  Castle  Garden,  stands ;  but  without  any 
right  of  way  by  carts,  carriages  or  other  vehicles  upon  or 
across  the  Battery,  or  any  part  thereof,  without  the  special 
leave  of  the  mayor  in  writing.  The  lessee  to  have  no  exclusive 
right  to  occupy  or  use  the  bridge  leading  from  the  said  Bat- 
tery to  the  Garden,  except  the  right  of  the  same  for  foot  passen- 
gers, and  to  have  no  right  of  wharfage  on  either  side  thereof." 

The  premises,  therefore,  are  Castle  Garden  proper,  and  the 
right  of  way  over  the  bridge. 

There  is  a  covenant  in  the  usual  form,  not  to  assign  or  sublet 
the  premises  without  the  assent  of  the  corporation. 

An  assent  was  given  by  the  comptroller,  on  behalf  of  the 
common  council,  on  the  27th  of  March,  1855,  sanctioning  the 
assignment  by  Allen  to  Conklin.  The  duty  and  power  to  give 
such  assent  is  conferred  by  the  ordinance  of  1844,  (sec.  4  of 
title  4).  The  comptroller  has  refused  his  consent  to  the  assign- 
ment by  Conklin  to  the  commissioners  of  emigration,  made  by 
him  on  the  5th  of  tMay,  1855. 

It  is  insisted  that  the  want  of  such  assent  renders  that  as- 
signment wholly  void.  It  is  replied  that  by  consenting  to  one 
assignment  the  covenant  is  discharged.  Dumpor's  case,  (4 
Coke,  119,  Smith's  leading  cases,  15).  Brummel  v.  Macpher- 
son,  (14  Vesey,  173) ;  and  Dakin  v.  Williams,  (17  Wend.  447) 
have  been  cited.  Whether,  as  the  last  case  partly  intimates, 
there  is  not  a  distinction  between  conditions  and  covenants 
in  this  particular  I  need  not  consider.  I  am  of  opinion  that 
it  is  for  the  corporation  alone  to  take  advantage,  by  re-entry 
or  otherwise,  of  any  breach  of  the  covenant.  No  one  else 
can  do  so.  And  one  among  several  reasons  is,  that  the  recep- 
tion of  rent  after  the  breach  would  prevent  a  forfeiture. 
(Goodright  v.  Davids,  Cowper,  803).  It  is  stated  in  the  affidavit 
of  the  commissioners  that  they  have  paid  rent  since  they 
took  possession. 

I  conclude  this  branch  of  the  case  with  the  following  pro- 
positions, which  appear  to  me  to  be  established  by  the  pre- 
ceding review  of  the  statutes  and  documents  upon  the  subject. 

1.  That  the  plaintiff  and  other  owners  of  the  lots  purchased 


NEW-YOKE:.  473 


Phoenix  a.  The   Commissioners  of  Emigration. 


in  1815  have  no  right,  by  virtue  of  the  covenants  in  the 
deeds  from  the  corporation,  or  otherwise,  as  owners  of  such 
lots,  to  interfere  with  any  use  which  the  corporation  may 
make  or  permit,  of  the  premises  contained  in  the  lease  to 
Allen,  and  in  question  in  this  case. 

2.  That  the  corporation  of  the  city  of  New  York  are  en- 
titled to  the  building  called  Castle  Garden,  and  the  materials 
of  the  bridge,  by  virtue  of  their  purchase  from  the  United 
States,  in  1823 ;  and  are  entitled  to,  and  hold,  the  fee  of  the 
soil  under  such  building  and  bridge,  by  virtue  of  the  act  of  1821. 

3.  That  the  United  States  did  not  acquire  the  fee  of  these 
premises  by  the  cession  from  the  State  in  1808,  but  only  the 
use  of  and  jurisdiction  over  the  same;  that  this  fee,  subject 
to  such  right  in  the  United  States,  passed  to  the  corporation 
by  the  act  of  1821 ;  that  the  act  of  congress  and  surrender 
of   possession  discharged  and  extinguished  this  right  of  the 
United  States,  and  inured  to  the  benefit  of  the  corporation  as 
grantee  of  the  State ;  and  thus  the  corporation  hold  the  pro- 
perty under  the  act  of  1821,  and  according  to  the  conditions, 
and  upon  the  terms,  prescribed  by  such  act. 

4.  That  apart  from  the  question  of  nuisance,  no  one  but  the 
people  of  the  State  has  any  right  to  interfere  with  any  use 
whatever  which  the  corporation  may  think  proper  to  make  of 
these  premises ;  that  persons  in  the  position  of  this  plaintiff 
may  indeed  unite  in  a  complaint,  or  act  as  relators  with  the 
attorney  general,  to  prevent  a  perversion  of  the  property  ; 
but  the  people,  through  that  officer,  must  be  parties  to  the 
action.     It  is  needless  to  refer  to  any  other  case  than  that  of 
the  Broadway  Railroad,  (11  Legal  Obs.,  359),  to  support  this 
proposition.    The  condition  attached  to  the  grant  by  the  State, 
and  the  pu^oses  for  which  the  land  was  bestowed,  were  all 
of  a  public  nature — concerning  all  the  inhabitants  of  the  city 
at  large. 

5.  1'hat  the  want  of  the  assent  of  the  comptroller  to  the 
assignment  by  Conklin,  if  legally  necessary,  and  not  dispensed 
with  by  reception  of  rent,  is  an  objection  only  to  be  taken 
advantage  of  by  the  corporation  itself. 

II.  I  proceed  to  the  consideration  of  the  second  branch  of 
the  cause. 

1st.  There  can  be  no  question  that  if  the  occupation  of  Gas- 


474  ABBOTTS'  PKACTICE  REPORTS. 

Phoenix  a.  The  Commissioners  of  Emigration. 

tie  Garden  as  an  emigrant  depot  would  amount  to  a  nuisance, 
neither  the  corporation  of  New  York,  nor  the  State,  nor  the 
two  united,  could  so  employ  it.  An  injunction  would  then  be 
granted.  In  addition  to  the  cases  cited,  I  refer  to  the  Attorney 
General  v.  Johnstone,  (2  Wilson's  Rep.,  95,  2  Starkie,  51), 
and  to  the  Attorney  General  v.  Parmentier,  (vol.  6,  Excfiq. 
Rep.,  Phil,  edition)  :  "  The  crown  has  not  a  right  either  itself 
to  use  the  title  to  the  soil  between  high  and  low  water  as  a 
nuisance,  or  to  place  upon  that  soil  what  will  be  a  nuisance  to 
the  crown's  subjects.  If  the  crown  has  not  such  a  right  it 
could  not  transfer  it  to  the  city  of  London."  An  injunction 
was  retained  to  await  the  result  of  an  indictment  which  was 
pending. 

2d.  But  few  points  are  better  settled  than  this : — That  a 
Court  of  Chancery  will  not  interfere  by  injunction  unless  the 
thing  sought  to  be  prohibited  is  in  itself  a  nuisance,  and  irre- 
parable mischief  will  ensue  unless  the  prohibition  is  granted 
before  a  trial  at  law.  If  the  thing  to  be  enjoined  is  not  nox- 
ious of  itself,  but  something  which  may,  according  to  circum- 
stances, prove  to  be  so,  the  court  will  refuse  to  interfere  until 
the  matter  has  been  tried  at  law.  But  if  the  magnitude  of 
the  injury  to  be  dreaded  is  great,  and  the  risk  so  imminent 
that  no  prudent  man  could  think  of  incurring  it,  the  court 
will  not  refuse  to  interfere  on  the  ground  that  there  is  a  possi- 
bility that  the  anticipated  injury  from  the  noxious  erection 
may  not  happen. 

These  are  the  general  rules  laid  down  by  Lord  Brougham, 
(Cooper's  R.  Temp.  Brougham,  343),  adopted  by  Chancellor 
Walworth,  (6  Paige,  563),  and  sustained  and  applied  in  the 
following  cases: — Howe  v.  The  Granite  Bridge  Company,  (21 
Pick.  344),  Yaughan  v.  Law,  (1  Humphrey,  12%  Kirkman  v. 
Houck,  (11  Humphrey,  406),  City  of  Georgetown  v.  Alexan- 
dria Canal  Company,  (12  Peters,  92),  White  v.  Cohen,  (19 
Eng.  L.  and  Eq.  Rep.,  149).  See  also  the  subject  examined  in 
The  Attorney  General  v.  The  Sheffield  Gas  Company,  (3  De 
Gex,  McNaughtan  and  Gordon,  316). 

While  the  general  rule  is  thus  stated,  it  will  be  noticed,  that 
in  very  many  of  the  authorities  the  effect  of  the  intended 
erection  was  an  expected  injury  to  property  merely. 

The  cases  which  relate  to  an  expected  injury  to  health  and 


NEW-YORK.  475 


Phoenix  a.  The   Commissioners  of  Emigration. 


comfort  require  to  be  more  particularly  referred  to,  as  more 
applicable  to  the  present  question. 

The  principal  of  such  cases  are  the  following : — Anon,  (3 
Aik.,  750),  Catlin  v.  Valentine,  (9  Paige,  576),  The  Burnt  Island 
Whale  Fishing  Company  v.  Trotter,  (5  Wilson  &  Shaw,  649), 
Swinton  v.  Pedrie,  (15  Shaw  &  Dunlap,  775,  McLean  &  Rob- 
insorfs  Parl.  Rep.,  1018),  The  Mayor  of  London  v.  Bolt,  (5 
Vesey,  129),  T*he  Attorney  General  v.  Cleaver,  (18  Vesey, 
211),  Attorney  General  and  others  v.  Blount,  (4  Hawks,  384). 

"We  find  most  of  these  cases  to  be  those  of  slaughtering- 
houses.  Now  such  an  erection  is  indictable  as  a  nuisance  at 
common  law,  (Rex  v.  Cross,  2  Carr  &  Payne,  483,  and  see 
Rex  v.  Watts,  Ibid  486).  The  Scottish  cases,  Catlin  v.  Yalen- 
tine,  and  several  others  in  our  courts,  are  open  to  the  comment 
that prima  facie  the  trade  or  building  to  be  inhibited  was  in- 
dictable as  a  nuisance,  and  the  court  would  not  permit  an  ex- 
periment to  be  made  to  ascertain  whether  untried,  though 
apparently  efficient  means,  might  not  remove  or  diminish 
the  evil. 

The  Scottish  case  of  Swinton  v.  Pedie  deserves  particular 
notice.  The  bill  of  suspension  and  interdict  was  to  restrain 
the  erection  of  a  range  of  shambles  and  slaughter  houses, 
which,  it  was  alleged,  would  prove  a  nuisance  to  the  property 
of  the  parties,  and  would  pollute  a  mill  head  which  passed  the 
neighborhood.  The  interdict  granted  by  the  lord  ordinary,  to 
whom  it  was  presented,  was  absolute ;  restraining  the  erection 
of  the  buildings  as  well  as  the  intended  use  of  them  as  sham- 
bles. This  was  ex  parte.  On  a  hearing  he  recalled  the  inter- 
dict so  far  as  it  prohibited  the  erection  of  the  buildings,  but 
no  further. 

When  the  record  was  closed,  (proofs  being  taken),  another 
lord  ordinary  made  the  interdict  permanent  as  it  was  modified. 

On  appeal  from  this  decision,  the  plans  by  which  the  party 
expected  to  remedy  the  evil  were  ordered  to  be  submitted. 
This  was  done  at  length,  and,  upon  considering  them,  the 
Scottish  Appeal  Court  adhered  to  the  interdict. 

Then  in  the  house  of  lords  it  was  recognized  that  the  effect 
of  the  interdicts,  as  they  stood,  allowed  the  party  to  go  on 
with  the  building.  The  result  was,  that  the  interdict  was  sus- 
tained, but  with  a  qualification  or  declaration  which  would 


476  ABBOTTS'  PRACTICE  REPORTS. 

Phoenix  a.  The   Commissioners  of  Emigration. 

enable  the  party  to  apply  to  the  court  thereafter  for  an  oppor- 
tunity to  try  the  experiment  whether  the  means  he  had  devis- 
ed were  effectual  to  remove  the  nuisance.  The  court  was  not 
by  the  jdecree  to  be  prevented  from  recalling  the  interdict  if 
so  advised. 

The  foundation  of  the  decision  throughout  was,  that  a 
slaughter  house  in  a  city  was,  by  the  law  of  Scotland  as  of 
England,  a  common  nuisance. 

In  Rex.  v.  Ward,  (1  Burrows,  333),  the  indictment  was  for 
erecting  and  continuing  works  for  making  acid  spirit  of  sul- 
phur, oil  of  vitriol,  and  oil  of  aquafortis ;  that  in  the  process 
was  sent  forth  abundance  of  noisome,  offensive  and  stinking; 
smoke,  whereby  the  air  wras  impregnated  with  noisome  and 
offensive  smells,  to  the  common  nuisance  of  all  the  king's  sub- 
jects residing,  &c.  From  the  judge's  report  it  appeared  that 
the  smell  was  not  only  intolerable  and  offensive,  but  also  nox- 
ious and  hurtful,  and  made  many  persons  sick.  A  conviction 
was  sustained.  The  word  noisome  was  held  synonymous  with 
noxious,  and  that  included  insalubrity  and  unwholesomeness. 

I  think,  then,  that  the  rule  declared  by  Lord  Hardwicke  in 
the  case  cited  from  3  Atkyns  is  to  this  day  the  general  rule  of 
the  court  upon  this  subject.  Bills  to  restrain  alleged  nuisances 
must  be  for  such  as  are  known  nuisances  in  the  law.  Unless 
they  are  such,  the  court  will  not  interfere  without  a  verdict, 
except  in  very  marked  and  imperative  cases  of  imminent  and 
irretrievable  danger.  Otherwise  the  parties  will  be  left  to  in- 
dictment, or  abatement ;  or  occasionally  an  issue  will  be 
directed. 

It  is  impossible  to  say  that  the  law  has  pronounced  an  emi- 
grant depot  in  a  city  to  be  a  public  nuisance.  Its  character 
must  be  established  by  the  nature  of  the  diseases  of  its  in- 
mates— their  frequency  and  extent — the  number  of  persons 
received — the  peril  to  health  flowing  from  their  presence — the 
location  of  the  edifice  as  to  a  large  or  scanty  population  in  its 
vicinity — the  precautions  which  may  be  used,  and  may  be  de- 
pended upon  ;  and  many  other  circumstances  peculiar  to  each 
individual  case. 

3d.  It  becomes  therefore  necessary  for  me  to  examine  the 
particular  circumstances  appearing  upon  the  affidavits  and 
documents  presented. 


NEW-YORK.  477 


Phoenix  a.  The   Commissioners  of  Emigration. 


The  State  has  considered  the  regulation  of  emigration  into 
its  limits  as  of  such  importance  as  to  call  for  the  appointment 
of  a  particular  board  to  superintend  it.  The  act  of  May,  1847, 
(chap.  195),  created  the  commissioners  of  emigration  such  a 
board,  and  provided  a  fund  by  appropriating  the  tax  of  $1  50 
for  every  emigrant  for  whom  a  bond  was  not  given,  to  meet 
the  expenses  incurred  for  the  support  of  the  poor  among  them. 
In  1848  their  authority  was  enlarged  by  the  legislature  in  the 
act  of  April  11  of  that  year,  and  again  by  the  act  of  April 
13,  1850. 

It  is  plain  that  the  prominent  object  of  the  legislature  in 
such  an  organization  was  to  relieve  the  cities  from  the  burthen 
of  supporting  the  multitudes  of  the  indigent  and  sick  among 
the  emigrants ;  to  afford  them  means  of  support  or  restoration 
to  health,  until  the  opportunity  of  sustaining  themselves  was 
offered ;  of  sheltering  the  unwary  from  the  infamous  frauds 
which  were  constantly  practised  upon  them ;  and  of  guarding 
against  the  propagation  of  dangerous  diseases  with  which  they 
might  be  afflicted  when  they  reached  these  shores. 

Among  other  provisions  for  the  accomplishing  these,  or  some 
of  these  objects,  the  commissioners  were  authorized  by  the 
first  section  of  the  act  of  1848  to  lease  or  purchase  suitable 
docks  or  piers  in  the  city  of  New  York,  and  to  erect  necessary 
enclosures  thereon  for  the  exclusive  use  of  landing  emigrant 
alien  passengers ;  but  no  docks  or  piers  could  be  purchased  or 
leased  without  the  approval  or  consent  of  the  common  council. 
A  license  was  to  be  given  on  certain  conditions,  to  proprietors 
of  lighters  or  steamboats,  to  receive  passengers  from  the  ves- 
sels and  land  them  on  the  selected  piers,  and  a  penalty  was 
imposed  for  landing  them  upon  any  other  piers  or  wharfs. 

The  act  of  April  13,  1855,  directed  the  commissioners  to 
designate  some  one  place  in  the  city  for  the  landing  of  the 
passengers ;  and  the  seventh  section  provided  that  they  shall 
have  authority  to  purchase,  lease,  and  occupy  such  wharves, 
piers,  and  other  accommodations  in  the  city  of  New  York  as 
may  be  necessary  for  the  accommodation  of  emigrant  passen- 
gers for  the  purposes  of  landing  them.  The  eighth  section 
places  the  authority  in  the  health  officer,  to  give  notice  to  mas- 
ters and  owners  to  land  the  passengers  at  the  pier  or  places 
thus  designated. 


4:78  ABBOTTS'  PEACTICE  REPORTS. 

Phoenix  a.  The   Commissioners  of  Emigration. 

The  principal  difference  between  the  powers  thus  conferred, 
and  those  granted  in  the  act  of  1848,  is  that  the  consent  of  the 
corporation  is  not  now  made  necessary  to  a  purchase. 

These  provisions  clearly  indicate  the  sense  of  the  legislature 
and  of  the  commissioners  of  emigration,  on  whose  application 
they  were  obtained,  that  the  selection  of  particular  places  for 
the  purpose  of  landing  emigrants  was  of  importance  to  carry 
out  the  objects  in  view. 

I  have  carefully  examined  the  affidavits  now  before  me,  and 
I  consider  that  they  establish,  beyond  any  reasonable  doubts, 
these  points : — 

1.  That  the  selection  of  Castle  Garden  enables  the  commis- 
sioners more  effectually  to  guard  the  emigrants  from  frauds 
and  imposition.     That  it  is  of  great  advantage  in  facilitating 
their  dispersion  throughout  the  country ;  and  of  giving  them 
the  benefit  of  the  counsel  and  aid  of  the  several  societies  spe- 
cially formed  to  watch  over  their  comfort. 

2.  That  the  employment  of  Castle  Garden  for  the  purpose 
of  a  re-examination  is  of  manifest  advantage,  in  its  tendency 
to  secure  the  health  and  comfort  of  the  emigrants  themselves. 
The  judgment  and  experience  of  the  commissioners,  confirmed 
by  the  affidavit  of  Dr.  Harris,  formerly  deputy  health  officer, 
Dr.  Osborn,  and  other  physicians,  of  Captain  Crabtree,  and  of 
Cyrus  Curtis,  formerly  a  commissioner  of  emigration,  establish 
this. 

3.  The  bringing  together  all  the  emigrants  whose  diseases 
have  escaped  detection  at  Quarantine,  into  one  place,  such  as 
the  premises  in  question,  is  decidedly  more  likely  to  avert  the 
propagation  of  diseases  in  the  city  at  large  than  the  present 
system.     The  effects  of  landing  the  passengers  at   different 
points — of  immediately  crowding  them  into   filthy  boarding 
houses — are  stated  in  the  affidavits  of  several  of  the  experi- 
enced physicians  and  others,  and  bear  every  appearance  of 
good  sense  and  truth. 

4.  The  question  of  the  deterioration  of  the  value  of  property 
depends  chiefly  on  the  settlement  of  the  question  next  dis- 
cussed, as  to  the  effect  of  the  proposed  use  of  the  Garden  upon 
the  health  of  the  neighboring  inhabitants.     As  far  as  any  dis- 
tinction exists,  it  is  sufficient  to  say,  that  a  stronger  case  mast 
be  made  for  an  injunction  than  in  cases  of  threatened  injuries 


NEW-YORK  479 


Phoenix  a    The    Commissioners  of  Emigration. 


to  health.     When  a  nuisance  is  established  and  abated  by  the 
verdict  of  a  jury,  the  injury  to  property  will  be  removed. 

5.  In  relation  to  the  decision  in  Brower  v.  The  Mayor,  &c., 
(3  Barb.  8.  C.  Rep.,  254),  I  may  say  that  a  case  was  there 
made  by  the  plaintiff,  and  not  successfully  repelled  by  the  de- 
fendants, widely  different  from  the  present. 

6.  The  remaining  and  leading  question  is  as  to  the  extent 
and  imminence  of  the  danger  from  contagious  or  infectious 
diseases,  to  the  inhabitants  in  the  immediate  vicinity,  repre- 
sented by  the  plaintiff. 

The  distance  of  the  Garden  from  the  nearest  habitation  is 
about  five  hundred  feet.  The  intermediate  space  is  open 
ground,  with  a  free  ventilation.  I  must  confide  in  the  state- 
ments of  the  commissioners,  that  they  mean  to  prevent  the 
emigrants  from  intruding  on  the  Battery  grounds,  and  I  see 
no  difficulty  in  their  accomplishing  this  purpose. 

Disregarding  the  long  list  of  deponents  on  each  side,  whose 
want  of  information  upon  this  subject  robs  their  opinion  of 
weight,  I  have  given  my  principal  attention  to  the  affidavits 
of  the  medical  gentlemen.  If  the  rustic  rule  of  decision, 
numero  non  pondere,  was  applied,.  I  find  an  overwhelming 
number  on  the  part  of  the  defendants.  It  is  of  course  beyond 
my  power  to  estimate  the  relative  weight  of  character  and 
qualification.  But  several  of  the  physicians  on  the  part  of 
the  defendants  are  now,  or  have  been,  in  official  situations 
which  entitle  their  opinions  to  influence,  independent  of  com- 
parative professional  eminence.  Among  these  are  Dr.  Harris, 
formerly  deputy  health  officer,  whose  affidavit  merits  particu- 
lar notice  ;  Dr.  Sterling,  physician  at  the  Marine  Hospital 
from  1848  to  1853,  and  examining  physician  of  the  commis- 
sioners since  that  time  ;  Dr.  Rockwell,  health  officer  for  four 
years,  and  now  resident  physician  of  city  and  agent  of  the 
board  of  health ;  Dr.  Miller,  the  present  health  commissioner, 
and  formerly  member  of  the  common  council  and  on  the  com- 
mittee of  public  health  ;  Dr.  Fay,  deputy  health  officer  for 
three  years  prior  to  the  summer  of  1854 ;  Dr.  Cox,  visiting 
physician  to  the  hospital  of  the  commissioners  ;  Dr.  Thompson, 
health  officer  of  the  port  of  New  York  ;  Dr.  Roth,  in  the  em- 
ploy of  the  commissioners  at  Quarantine  ;  Dr.  Martindale, 


480  ABBOTTS'  PRACTICE  REPORTS. 

Phoenix  a.  The    Commissioners  of  Emigration. 

deputy  health  officer  of  the  port ;  and  Dr.  Vache',  physician 
in  chief  of  the  Marine  Hospital,  and  for  five  years  resident 
physician  of  the  city. 

The  opinions  of  so  large  a  number  of  responsible  officers  and 
experienced  physicians  are  in  my  judgment  decisive.  I  attri- 
bute more  than  mere  personal  importance  to  the  oaths  of  those 
who  have  been  set  apart  by  the  public  to  watch  over  the  health 
of  the  city  ;  whose  experience  and  constant  familiarity  with 
the  habits  and  diseases  of  emigrants  mark  them  as  best  quali- 
fied to  speak  with  authority;  and  whose  prejudiced  or  even 
hasty  judgment  involves,  not  merely  the  impeachment  of  their 
fairness  and  intelligence,  but  the  violation  of  a  solemn  duty 
consigned  to  them  by  the  public.  All  these,  with  entire  una- 
nimity, state  that  the  apprehensions  of  the  spread  of  contagion 
from  such  a  use  of  Castle  Garden  as  is  proposed,  are  groundless. 

7.  Another  consideration  is,  that  the  common  council  of  the 
city,  as  conservators  of  the  public  health,  may  abate  every 
nuisance  ;  and,  if  experience  proves  that  the  evils  and  dangers 
anticipated  by  the  plaintiffs  are  in  any  degree  realized,  they 
may  be  immediately  removed.  The  powers  of  otir  corporation 
are  as  extensive  as  those  of  the  municipal  authorities  of  Boston 
or  of  Albany  ;  and  such  is  the  rule  prevailing  there.  (Baker 
v.  Boston,  12  Pick,  184 ;  Yan  Wormer  v.  The  Mayor  of  Alba- 
ny, 15  Wendell,  262).  By  the  act  of  1850,  (ch.  275),  the  mayor 
and  common  council  are  constituted  the  board  of  health  ;  and 
by  section  2  of  article  1,  title  3,  they  have  full  authority  to 
abate  all  nuisances  within  the  city. 

I  have  given  to  this  motion  the  care  and  study  its  import- 
ance and  interest  demand,  and  the  result  is  a  conviction  that 
to  arrest  the  plan  of  the  commissioners,  full  as  it  is  of  so  many 
undeniable  benefits,  upon  the  evidence  now  before  me,  would 
be  a  rash  and  unwarrantable  exercise  of  power,  salutary  only 
when  wielded  with  caution,  but  a  formidable  and  mischievous 
engine  of  wrong  when  exerted  except  upon  the  mandate  of 
imperious  necessity. 

The  motion  for  the  injunction  must  be  denied,  and  the  tem- 
porary order  discharged,  without  costs  to  either  party. 

NOTE.     This  decision  was  affirmed  on  appeal  to  the  general  term. 


DIGEST 

OF 

ALL    POINTS    OF    PRACTICE 

EMBRACED    IN 

THE  STANDARD  NEW  YORK  REPORTS, 

Issued  during  the  period  covered  by  this  Volume, 

WITH    REFERENCES    TO 

THE  AMENDATORY  ACTS  OF  1855. 


ABATEMENT. 

ANSWER,  19,  20;  JUSTICES'  COURT,  lit.  Pleadings,  7. 

ABSENT  AND  ABSCONDING  DEBTORS. 

ATTACHMENT,  7,  8,  9. 

ACCESSORY. 

The  rule  of  the  common  law  that  an  accessory  cannot  be  tried  until 
after  the  conviction  of  his  principal,  has  not  been  abrogated.  Baron 
a.  The  People,  1  Parker's  Or.  R.,  246. 

ACCORD  AND  SATISFACTION. 

EVIDENCE,  tit.  Burden  of  Proof,  1 ;  TRIAL,  tit.  New  Trial,  10. 

ACCOUNTS. 

EVIDENCE,  tit.  Private    Writings,  1,  2 ;  JUSTICES'  COURT,  tit.  Juris- 
diction, 9 ;  SURROGATE'S  COURT,  1. 

ACCOUNT  STATED. 
EVIDENCE,  tit.  Admissions,  4 ;  TRIAL,  tit.  Charge,  4. 

ACQUITTAL. 

When  a  former  trial  and  acquittal  will  be  a  bar  to  a  second  indictment 
for  the  same  acts,  charged  as  constituting  a  different  offence.  Burns 
a.  The  People,  1  Parker's  Cr.  It.,  182.  See  also  The  People  a. 

Warren,  lb.,  338 ;  The  People  a.  Allen,  Ib^  445. 
31 


482  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

ADMINISTRATOR. 

EXECUTORS  AND  ADMINISTRATORS. 

AFFIDAVIT. 

The  venue  is  an  essential  part  of  an  affidavit;  and  is prima facie  evi- 
dence of  the  place  where  the  affidavit  was  taken ;  and  an  affidavit 
without  a  venue  is  a  nullity,  although  sworn  to  before  an  officer  whose 
residence  is  mentioned  in  the  jurat.  Cook  a.  Staats,  18  Barb.,  407. 

ATTACHMENT,  3, 5 ;  INJUNCTION,  4 ;  JUSTICES'  COURT,  tit.  Default,  2, 5 ; 
MOTIONS  AND  ORDERS,  8,  9 ;  SERVICE  AND  PROOF  OF,  9,  10 ; 
VERIFICATION. 

AFFIRMATIVE  RELIEF. 

The  affirmative  relief  which  the  court  is  authorized  by  section  274  of 
the  Code,  to  grant  to  a  defendant,  is  affirmative  relief  against  the 
plaintiff  only ;  not  against  a  co-defendant.  Mechanics'  and  Traders' 
Savings  Institution  a.  Roberts,  Ante,  381 ;  and  see  Tracy  a.  The  N. 
Y.  Steam  Faucet  Company,  1  'E.  D.  Smith's  C.  P.  E.,  349. 

AGENT. 

ANSWER,  10,  11;  JUSTICES'  COURT,  tit.  Default,  2,4;  PARTIES,  4; 
PLEADING,  27 ;  VERIFICATION,  3. 

ALIEN. 

JURISDICTION,  3. 

AMENDMENT. 

1.  On  amending  a  complaint,  when  it  is  done  under  section   172  of 
the  Code,  as  a  matter  of  course  and  of  right,  a  plaintiff  may  add  a 
new  cause  of  action.     Mason  a.  Whitely,  Ante,  85. 

2.  The  only  restrictions  imposed  upon  the  right  of  plaintiff  to  amend 
are,  that  he  shall  not  amend  for  the  purposes  of  delay,  nor  to  prevent 
a  trial  at  a  term  for  which  the  action  is  or  may  be  noticed  to  be  tried  ; 
and  that  the  cause  of  action  added  be  one  that  may  properly  be  united 
with  the  one  contained  in  the  original  complaint.     Ib. 

3.  When  the  defendants  serve  a  written  offer  to  let  judgment  be  enter- 
ed against  them  under  section  385  of  the  Code,  and  the  plaintiff, 
without  accepting  such  offer,  and  after  the  time  for  accepting  it  has 
elapsed,  serves  an  amended  complaint  not  materially  affecting  the 
issue,  and  issue  is  joined  thereon,  the  defendants  are  not  by  such  an 
amendment  deprived  of  the  benefit  of  the  offer. 

It  seems  that  such  an  offer  may  be  made  even  before  the  complaint  is 


NEW-YORK.  483 


January — July,    1855. 


served,  and  that  no  amendment  of  the  complaint  would  deprive  the 
defendants  of  the  benefit  of  the  offer.  Kilts  a.  Seeber,  10  How.  Pr. 
jR.,  270. 

4.  Plaintiff  purposely  commenced  his  action  upon  contract  with  a  view 
to  obtain  an  order  for  publication  and  warrant  of  attachment ;  and 
having  obtained  this,  applied  for  leave  to  amend  the  summons  and 
complaint  so  as  to  found  the  action,  not  upon  contract,  but  upon  tort : 
— Held,  that  the  application  was  properly  denied  at  the  special  term. 
Lane  a.  Beam,  Ante,  65. 

5.  It  seems  that  the  court  has  not  power  to  permit  an  amendment  to 
the  answer  to  be  made  upon  the  trial,  which  sets  up  a  new  and  dis- 
tinct defence.     Fagen  a.  Davison,  2  Duer,  153 ;  Hunt  a.  Hudson 
River  Fire  Insurance  Company,  lb.,  481. 

6.  An  application  upon  the  trial  for  permission  to  amend  a  pleading  is 
addressed  solely  to  the  discretion  of  the  judge,  and  his  decision  is  not 
properly  appealable.     Hunt  a.  Hudson  River  Fire  Insurance  Com-; 
pany,  2  Duer,  481. 

7.  Upon  the  trial  plaintiff  was  permitted  to  amend  his  complaint  by 
adding  an  averment  that  the  deed  (which  he  had  pleaded  as  an  abso- 
lute conveyance)  was  made  as   collateral  security,  and  was  a  mort- 
gage,  it   being   stipulated   that   this   averment   should  be    deemed 
traversed  by  the  answer. 

Held,  on  appeal,  that  this  amendment  was  within  the  discretion  of  the 
judge,  and  not  subject  to  review  in  the  Court  of  Appeals.  Hodges  a. 
The  Tennessee  Marine  &  Fire  Insurance  Co.,  4  Seld.,  146. 

8.  In  a  bill  filed  before  the  vice  chancellor  in  the  second  circuit  to  fore- 
close a  mortgage  of  lands  in  the  first  circuit,  the  fact  which  gave  the 
vice   chancellor  jurisdiction,  viz.,  the    residence  of  certain    parties 
within  his  circuit,  %a?  not  alleged ;  but  after  the  bill  had  been  taken 
as    confessed   against  a  defendant,   the   plaintiff  was   permitted  to 
amend  by  averring  the  facts  necessary  to  give  jurisdiction. 

ffeld,  that  the  amendment  cured  the  defect,  and  that  title  under  the 
foreclosure  was  good  against  the  defendant  in  respect  to  whom  the 
bill  was  taken  as  confessed  before  amendment.  Classon  a.  Cooley,  4 
Seld.,  426. 

9.  An  application  after  judgment  for  the  defendant,  for  leave  to  amend 
the  complaint,  was  refused  as  being  too  late,  where  the  defendant's 
principal  witness  was  dead,  and  the  proposed  amendment  changed 
the  whole  gravamen  of  the  action.     Egert  a.  Wicker,  10  How.  Pr. 
R.,  193. 

10.  Amendments  to  the  pleading ;,  affecting  the  merits,  not  to  be  made 


484  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

by  the  general  term,  on  appeal  after  judgment.  Brown  a.  Colie,  1 
E.  D.  Smith's  C.  P.  R.,  265. 

11.  The  complaint  against  the  assignee,  in  a  fraudulent  transfer  of  pro- 
perty by  a  deceased  person,  joining  with  the  assignee,  the  administrator 
of  his  assignor  as  defendant,  and  seeking  to  have  the  transfer  set  aside, 
omitted  to  show  that  the  administrator  claimed  to  regard  the  transfer 
as  bonafide;  but  the  administrator's  answer  averred  that  fact.  Upon 
appeal  from  judgment  against  defendants — Held,  that  the  omission  in 
the  complaint  might  be  then  cured  by  amendment.  Bate  a.  Graham, 
1  Kern.,  237. 

APPEAL,  5  ;  COMPLAINT,  18 ;  COSTS,  5  ;  CRIMINAL  LAW,  tit.  Judg- 
ment, 4,  5 ;  DEPOSITION  ON  COMMISSION,  7 ;  DEPOSITION  DE 
BENE  ESSE,  3 ;  EXECUTION,  1,  7 ;  JUSTICES'  COURT,  tit.  Plead- 
ing, 3,  4,  6. 

ANSWER. 

1.  A  sham  answer,  defined  to  be  one  good  upon  its  face,  but  setting  up 
new  matter  which  is  false ; — the  remedy  is  by  motion  to  strike  it  out. 
Lefferts  a.  Snediker,  Ante,  41. 

2.  An  answer  is  sham  only  when  it  sets  up  new  matter  known  to  the 
defendant  to  be  false.     Benedict  a.  Tanner,  10  How.  Pr.  R.,  455. 

3.  What  circumstances  in  the  nature  of  the  allegations  made  by  the 
pleadings,  will  prevent  an  answer  being  struck  out  as  sham.     Ib. 

4.  Slight  circumstances  indicating  good  faith,  are  sufficient  to  prevent  a 
verified  answer  from  being  stricken  out  as  sham.     Munn  a..  Barnum, 
Ante.,  281. 

5.  Where  neither  complaint  nor  answer  are  verified,  and  the  answer 
merely  denies  the  allegations  hi  the  complaint,  setting  up  no  new 
matter,  it  cannot  be  stricken  out  as  sham.     Goedtl  a.  Robinson,  Ante, 
116. 

6.  A  denial  in  an  answer,  of  knowledge  or  information  sufficient  to  form 
a  belief,  as  to  matters  stated  in  a  complaint,  is  not  necessarily  sham 
or  evasive,  unless  it  appears  that  the  party  had  the  means  of  obtain- 
ing information  directly  within  his  reach.     Wesson  a.  Judd,  Ante, 
254.     And  see  Ketcham  a.  Zerega,  1  E.  D.  Smith's  C.  P.  R.,  553. 

7.  A.  frivolous  answer  defined  to  be  one  which  controverts  no  material 
allegation  in  the  complaint,  and  presents  no  tenable  defence ; — the 
remedy  is  by  application  for  judgment,  upon  five  days'  notice.     Lef- 
ferts a.  Snediker,  Ante  41. 

8.  An  answer,  putting  in  issue  all  the  material  allegations  of  a  com- 
plaint which  are  employed  to  show  that  the  title  to  a  note  sued  upon 


NEW-YORK.  485 


January — July,  1855. 


is  in  the  plaintiff,  and  that  he  is  the  actual  party  in  interest,  is  not 
frivolous.     Metropolitan  Bank  a.  Lord,  Ante,  185. 

9.  When  a  complaint  upon  a  promissory  note,  in  an  action  against  the 
maker  and  payee,  to  show  title  in  the  plaintiff,  avers  an  indorsement 
by  the  payee,  and  a  delivery  to  the  plaintiff,  but  not  saying  by  whom, 
and  that  the  plaintiff  is  "  the  holder  and  owner  of  such  note,"  an 
answer  which  puts  in  issue  the  latter  allegation,  and  denies  that  the 
payee  ever  delivered  it  to  the  plaintiff,  but  on  the  contrary  alleges 
that  he  delivered  it  to  a  third  person,  whose  name  is  stated,  is  not 
frivolous.     Ib. 

10.  Complaint  against  a  corporation,  on  a  promissory  note  made  by  its 
agent. 

Answer :  Defendant  has  no  knowledge  or  information  sufficient  to  form 
a  belief  that  it  did  at  the  time,  and  for  the  purpose  stated  in  the  com- 
plaint, by  its  authorized  agent,  make  its  promissory  note  by  the 
name  and  for  the  amount,  and  as  is  in  this  respect  set  forth  in  said 
complaint. 

Held,  at  chambers,  that  the  answer  was  frivolous,  and  should  be 
stricken  out  as  such,  on  the  ground  that  a  corporation  is  bound 
to  know  whether  it  has  executed  a  promissory  note  such  as  was 
alleged.  Thorn  a.  The  New  York  Central  Mills,  10  How.  Pr.  R.,  19. 

11.  Held,  by  the  general  term  : — 

1.  That  it  is  bad  pleading  on  the  part  of  a  corporation,  or  of  a  princi- 
pal, to  deny  knowledge  of  such  acts  of  an  agent  as  these. 

2.  That  this  question  being  new,   the  answer  should  not  have  been 
stricken  out  as  frivolous,  for  this  defect. 

3.  That  the  answer  should,  however,  be  stricken  out  as  frivolous, 
for  violating  the  established  rules  of  pleading,  by  denying  the  alle- 
gations of  the   complaint  conjunctively.     Shearman  a.  The  New 
York  Central  Mills,  Ante,  187. 

12.  A  denial  in  an  answer  of  knowledge  sufficient  to  form  a  belief  is 
not  good,  as  a  denial  of  knowledge  or   information  sufficient,  &c. 
Ketcham  a.  Zerega,  1  E.  D.  Smith's  C.  P.  R.,  553. 

13.  In  an  action  on  a  judgment  brought  in  the  court  in  which  the  judg- 
ment was  rendered,  the  defendant  ought  not  to  be  permitted  to  deny 
that   he  has  knowledge   or   information  sufficient  to  form  a  belief 
whether  the  plaintiff  did  recover  the  alleged  judgment.     Ib. 

14.  A  defendant  who    admits  that  he  executed  an  instrument   upon 
which  he  is  sued,  cannot  deny  information  sufficient  to  form  a  belief 
as  to  facts  stated  in  the  instrument.     Wesson  a.  Judd,  Ante,  254. 

15.  A  defendant  who  admits  having  executed  an  instrument  similar  to 


486  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

that  upon  which  he  is  sued,  cannot  deny,  merely  upon  a  want  of 
information  sufficient  to  form  a  belief,  that  the  instrument  is  correctly 
set  forth  in  the  complaint ;  but  he  is  entitled  to  an  inspection  of  the 
original  to  enable  him  to  answer.  Ib. 

16.  An  answer  which,  without  denying  any  fact  stated  in  the  complaint, 
merely  says  that,  "  the  defendant  denies  that  the  plaintiff  is  entitled 
to  the  money  demanded,"  will  be  struck  out  on  motion.     Drake  a. 
Cockroft,  Ante,  203.    And  compare  Higgins  a.  Rockwell,  2  Duer,  650. 

17.  An  answer  which  merely  alleges  a  conclusion  of  law  without  set- 
ting out  the  facts  by  which  that  conclusion  is  supported,  is  insufficient 
to  admit  evidence  of  those  facts.     Seeley  a.  Engell,  17  Barb.,  530. 

18.  The  facts  which  are  relied  upon  as  constituting  a  defence  must  be 
set  forth  in  the  answer,  with  at  least  so  much  certainty  as  to  enable 
the  court  to  say  that,  admitting  them  to  be  true  as  alleged,  they  con- 
stitute a  bar  to  the  plaintiff 's  recovery.     And  where  the  defendant 
relies  upon  an  award  of  arbitrators  upon  the  matter  in  controversy, 
as  his  defence,  although  it  may  not  be  necessary  to   set  forth  its 
terms,  its  substance  must  be  set  forth  so  fully  as  to  enable  the  court 
to  say  that  if  such  an  award  was  made  the  action  is  barred.      Gihon 
a.  Levy,  2  Duer,  176. 

19.  The  Code  has  in  effect  abrogated  the  old  rule,  that  a  plea  in  bar 
waived  all  pleas  in  abatement.     Under  the  Code,  whenever  issue  is 
joined  upon  an  answer  containing  matter  in  abatement  and  in  bar, 
the  jury  may  be  required  to  find  specially  upon  each  issue.     If  the 
issue  upon  the  matter  in  bar  is  found  for  the  plaintiff,  and  the  issue 
upon  the  matter  in  abatement  for  the  defendant,  the  court  can  give  a 
judgment  dismissing  the  plaintiffs  complaint,  leaving  him  to  commence 
a  new  action.     Sweet  a.  Tuttle,  10  How.  Pr.  R.,  40. 

20.  The  rule  that  an  objection  in  the  nature  of  a  plea  in  abatement 
cannot  be  taken  in  a  general  answer,  is  abolished  by  the  Code.    And 
where  the  defendant  answered,  denying  each  and  every  allegation  in 
the  complaint,  and  alleging  the  non-joinder  of  his  co-partner — Held 
good.     Mayhew  a.  Robinson,  10  How.  Pr.  R.,  162. 

21.  The  rule  of  the  old  system- of  pleading,  that  a  special  plea  admits 
the  matters  stated  in  the  declaration,  is  applicable  to  pleadings  under 
the  Code.     Gregory  a.  Trainer,  Ante,  209. 

22.  Under  section  150  of  the  Code,  the  defendant  may  plead  a  partial 
defence ;  e.  g.,  mitigating  circumstances    in    an   action  of   libel   or 
slander.     Bush  a.  Prosser,  1  Kern.,  347.    But  see  Kneedler  a.  Stern- 
bergh,  10  How.  Pr.  R.,  67. 

23.  The  objection  that  the  plaintiff  in  a  suit  is  not  the  real  party  in  in- 


NEW-YOKE.  487 


January — July,    1855. 


terest  must  be  set  up  in  the  answer,  to  enable  defendant  to  rely  upon 
it  as  a  defence ;  and  although  the  fact  should  appear  upon  the  trial 
from  the  examination  of  witnesses,  it  is  then  too  late  for  the  defendant 
to  avail  himself  of  it  Jackson  a.  Whedon,  1  E.  D.  Smith's  C.  P. 
R.,  141. 

24.  An  answer  which  merely  denies  the  allegations  in  the  complaint 
does  not  allow  the  defendant  to  rely  upon  an  award  of  arbitrators 
upon  the  matters  in  controversy  as  a  bar  to  the  action,  although  the 
award  appears  from  the  plaintiff's  evidence.    The  award  should  have 
been  set  up  as  a  defence  in  the  answer.     Brazill  a.  Isham,  1  E.  D. 
SmitKs  G.  P.  R.,  437. 

25.  In  an  action  to  recover  the  possession  of  personal  property,  the  de- 
fendant may  set  up  a  general  denial  and  justification,  in  his  answer, 
where  they  are  separately  pleaded.     Neither  under  the  statute  of 
Anne  (4  &  5  Anne,  ch.  16,  §§  4  &  5)  nor  under  our  former  statute, 
(2  Rev.  Stats.,  352,  §  23)  would  these  defences  have  been  held  incon- 
sistent ;  nor  are  they  so  under  the  Code.     Hackley  a.  Ogmun,  10 
How.  Pr.  JR.,  44. 

26.  Where  the  complaint  contained  two  counts,  each  upon  a  promissory 
note,  an  answer  referring  simply  to  "  the  note  mentioned  in  the  com- 
plaint " — Held  bad  for  uncertainty.      Kneedler  a.   Sternbergh,   10 
How.  Pr.  R.,  67. 

27.  Although  it  was  the  general  practice  to  plead  the  discharge  accord- 
ing to  the  bankrupt  act  of  1841,  yet  under  the  old  practice  a  plea 
of  the  general  issue  and  notice  of  the  discharge  was  held  sufficient  to 
admit  the  certificate  in  evidence.     Campbell  a.  Perkins,  4  Seld.,  430. 

28.  Whether  under  the  Revised  Statutes  prior  to  the  Code  the  defend- 
ant could  give  notice  of  special  matter  with  a  plea  of  nul  tiel  record — 
Query  ?    Ward  a.  Barber,  1  E.  D.  Smith's  G.  P.  R.,  423. 

29.  Held,  in  the  Supreme  Court,  that  in  an  action  for  slander,  matter  in 
mitigation  can  be  pleaded  only  when  the  defendant  alleges  the  truth 
of  the  words  complained  of.     Ayres  a.  Covill,   18  Barb.,  260 ;  Herr 
a.  Bamberg,  10  How.  Pr.  R.,  128 ;  Contra,  Heaton  a.  Wright,  10 
How.  Pr.  R.,  79. 

30.  And  where  in  one  defence  the  defendant  pleaded  certain  matters  in 
justification,  in  a  second  defence  other  matters  in  justification,  and  in 
a  third  defence  stated  in  mitigation  of  damages,  the  same  matters  as 
those  contained  in  the  first  defence,  the  court  having  stricken  out  the 
first  defence  on  the  ground  that  it  constituted  no  justification,  ordered 
the  third  to  be  stricken  out  also.     Herr  a.  Bamberg,  10  How.  Pr. 
R.  128. 


488  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

31.  Held,  in  the   Court  of  Appeals,  that  in  such  an  action,  matter  in 
mitigation  may  be  pleaded  either  with  or  without  a  plea  of  justifica- 
tion.    And  a  plea  of  justification  does  not  conclude  the  defendant 
from  the  benefit  of  evidence  tending  to  disprove  malice.     Bush  a. 
Prosser,  1  Kern.,  347. 

32.  Section  165  of  the  Code  changes  both  the  rules  of  pleading  and 
the  rules  of  evidence  in  actions  for  libel  and  slander.    In  such  actions 
the  defendant  may  give  in  evidence  any  or  all  facts  and  circumstances 
which  have  a  legitimate  tendency  to  disprove  malice,  or  show  that 
the  truth  of  the  charge  was  probable  or  properly  inferrable,  and  even 
the  truth  of  the  charge  itself.  Heaton  a.  Wright,  10  How.  Pr.  R.,  79. 

33.  In  an  action  for  slander,  the  defendant  may  deny  the  uttering  of 
the  words,  and  also  set  up  by  way  of  justification  that  the  words 
alleged  to  have  been  spoken  by  him  were  true.     Buhler  a.  Went- 
worth,  17  Barb.,  649. 

34.  A  partial  defence  cannot  be  pleaded  under  the  Code  any  more  than 
formerly.     Whether  notice    may  be    given    with  a   plea, —  Query? 
Kneedler  a.  Sternbergh,  10  How.  Pr.  JR.,  67.    But  compare  Bush  a. 
Prosser,  1  Kern.,  347. 

AMENDMENT,  5 ;  DEMURREE,  2,  3,  5 ;  EVIDENCE,  tit.  Judgments  and 
Judicial  proceedings,  6,  7;  JUDGMENT,  3;  PLEADING. 

APPEAL. 

1.  The  court  cannot  extend  the  period  for  appeal  from  special  to  gen- 
eral term,  or  allow  an  appeal  when  the  time  has  expired.  Nor  should 
this  be  done  by  affixing  a  new  date  to  the  judgment.    Humphrey  a. 
Chamberlain,  1  Kern.,  274. 

2.  A  decision  upon  a  demurrer  to  the  whole  complaint,  sustaining  or 
overruling  the  demurrer,  and  directing  that  the  successful  party  have 
judgment,  is  a  judgment  when  entered.     An  appeal  does  not  lie  from 
such  a  decision  as  from  an  order  under  section  349   of  the   Code. 
Bauman  a.  The  New  York  &  Central  Railroad  Company,  10  How. 
Pr.  H.,  218 ;  Contra  per  HARRIS,  J.     Nolton  a.  The  Western  Rail- 
road Corporation.     lb.,  97. 

3.  But  it  is  otherwise  where  the  demurrer  is  to  a  part  of  the  complaint, 
and  leave  to  amend  or  answer  is  given.     In  such  case,  the  appeal 
may  be  as  from  an  order.     Cook  a.  Pomeroy,  10  How.  Pr.  R.,  221 ; 
Nolton  a.  Western  Railroad  Corporation,  lb.,  97. 

4.  Where  the  Recorder's   Court  of  Buffalo  ordered  judgment  for  the 
plaintiff  on  a  demurrer  to  an  answer,  with  leave  to  the  defendant  to 
amend  on  payment  of  costs,  and  by  stipulation  between  the  parties 


NEW-YORK.  489 


January — July,  1855. 


judgment  was  entered  by  the  plaintiff  for  the  amount  of  the  costs,  to 
enable  the  defendant  to  appeal ; — Held,  not  a  final  judgment,  and  the 
appeal  was  dismissed.  Perkins  a.  Farnham,  10  How.  Pr.  R.,  120. 

5.  An  order  at  special  term  allowing  an  action  to  be  continued  in  the 
names  of  surviving  plaintiffs  and  the  heir  of  the  deceased  plaintiff, 
and  allowing  the  addition  of  new  counts  to  the  declaration,  and  the 
filing  of  a  supplemental  complaint  is  appealable.     It  affects  a  sub- 
stantial right.     St.  John  a.  Croel,  10  How.  Pr.  R.,  253. 

6.  The  Court  of  Appeals  can  review  only  those  parts  of  a  decree  from 
which  an  appeal  is  taken.     Robertson  a.  Bullions,  1  Kern.,  243. 

7.  The  Court  of  Appeals  have  jurisdiction  to  review  an  order  made  by 
the  Supreme  Court  vacating  a  judgment  entered  by  confession.    Bel- 
knap  a.  Waters,  1  Kern.,  477. 

8.  An  action  in  the  nature  of  a  writ  of  quo  warranto  is  a  civil  action ; 
and  the  decisions  of  the  Supreme  Court  in  the  course  of  such  an  ac- 
tion will  be  reviewed  in  the  Court  of  Appeals,  upon  the  principles 
applicable  to  civil  actions,  and  not  by  those  which  prevail  in  criminal 
proceedings.     The  People  a.  Cook,  4  Seld.,  67. 

9.  In  proceedings  to  determine  the  title  to  land,  under  Revised  Statutes, 
tit.  2,  pt.  3,  ch.  5,  either  party  may  appeal.     Laws  of  1855,  943,  ch. 

511. 

10.  On  appeal  from  judgment  on  the  report  of  a  referee,  the  Court  of 
Appeals  cannot  review  questions  which  were  not  raised  before  the 
referee,  although  they  may  have  been  raised  before  the  general  term 
of  the  court  below  on  the  argument  of  a  motion  to  set  aside  the 
report.     Morris  a.  Husson,  4  Seld.,  204. 

11.  The  finding  of  a  referee  on  a  question  of  fact  cannot  be  reviewed 
in  the  Court  of  Appeals,  but  the  only  redress  of  the  party  is  the 
power  of  the  court  below  to  set  aside  the  report  as  against  the  weight 
of  evidence.     Lockwood  a.  Thome,  1  Kern.,  170. 

12.  The  Court  of  Appeals  will  not  review  interlocutory  orders,  except 
such  as  end  the  suit  and  prevent  the  rendering  of  a  judgment  from 
which  an  appeal  would  lie,  or  unless  there  is  an  appeal  from  the 
judgment.     An  order  changing  the  date  of  a  judgment,  the  time  for 
appeal  from  which  judgment  had  elapsed,  in  order  that  a  party  might 
appeal,  although  improper,  is  not  an  order  from  which  an  appeal  will 
lie  to  the  Court  of  Appeals.     Humphrey  a.  Chamberlain,  1  Kern., 
274. 

13.  It  seems, — that  the  general  term  should  not  on  appeal  from  an  order 
directing  the  payment  of  money  admitted  to  be  due  to  the  plaintiff, 
review  the  discretion  exercised  at  special  term,  in  respect  to  condi- 


490  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

tions  on  which  the  order  should  be  granted.     Merritt  a.  Thompson, 
Ante,  223. 

14.  Judgment  will  not  be  reversed  on  appeal  because  material  facts 
were  proved,  not  being  objected  to,  which  had  been  omitted  in  the 
allegations  of  the  complaint.     Davis  a.  Cayuga  &  Susquehanna  R. 
R.  Co.,  10  How.  Pr.  R.,  330. 

15.  One  of  the  defendants  in  a  judgment  against  two  may  appeal,  and 
the  appellate  court  may  reverse  the  judgment  as  to  him,  and  suffer 
it  to  stand  against  the  other  who  took  no  appeal,  in  cases  where  a 
separate  judgment  would  have  been  proper.     Geraud  a.  Stagg,  10 
How.  Pr.  R.,  369. 

16.  An  appellate  court,  upon  reviewing  a  judgment  upon  a  case  made 
at  the  trial,  can  only  reverse  the  judgment  and  order  a  new  trial ;  it 
is  not  authorized  to  render  final  judgment  for  the  appellant.  Astor  a. 
L'Amoreaux,  4  Seld.,  107. 

17.  It  seems  that  where  a  decision  of  the  general  term  affirming  a  de- 
cision at  special  term,  sustaining  a  demurrer  is  final,  no  leave  to  plead 
over  being  given,  appeal  should  be  taken  directly  from  that  decision 
as  a  judgment.     If,  however,  it  be  necessary  as  a  matter  of  form  to 
wait  until  judgment  is  perfected  in  the  action,  and  then  to  appeal  from 
that  judgment  to  .the  general  term,  before  going  to  the   Court  of 
Appeals,  the  court  will  not  as  a  general  rule,  permit  appellant  to 
argue  on  the  second  appeal  the  same  questions  which  were  discussed 
upon  the  first.     Keteltas,  a.  Myers,  Ante,  403. 

18.  Where  judgment  of  non-suit  was  reversed  by  the  Court  of  Ap- 
peals, and  a  new  trial  ordered, — Held,  on  appeal  from  the  judgment 
rendered  on  the  second  trial,  that  as  the  right  of  the  plaintiffs  to  re- 
cover on  the  facts  stated  in  their  declaration  was  directly  involved  in 
the  decision  of  the  first  appeal,  it  must  be  deemed  to  have  been  then 
conclusively  established.     Buell  a.  Lockport,  4  Seld.,  55. 

AMENDMENT,  7,  10,  11;  COSTS,  16,  17,  19,  21,  22;  CONTEMPT,  7  ; 
CRIMINAL  LAW,  tit.  Writ  of  Error,  and  tit.  New  Trial;  EXCEP- 
TIONS ;  JUDGMENT,  1,  2,  6 ;  JUSTICES'  COURT,  tit.  Appeal;  MOTIONS 
AND  ORDERS,  1,  7,  10  ;  SPECIAL  PROCEEDINGS,  1,  2,  3  ;  STATU- 
TORY CONSTRUCTION,  4 ;  STAY  OF  PROCEEDINGS,  1,4,5;  SUP- 
PLEMENTARY PROCEEDINGS,  1,  7 ;  TRIAL,  tit.  New  Trial. 

APPEARANCE. 

One  of  several  defendants  who  has  appeared  in  the  action,  although 
without  pleading,  is  entitled  to  notice  of  trial  of  the  issues  between 
the  plaintiff  and  the  other  defendants.  Tracy  a.  The  N.  Y.  Steam 
Faucet  Company,  1  E.  D.  Smith's  G.  P.  R.,  349. 


NEW-YOKE.  491 


January — July,  1855. 


JURISDICTION,  9  ;  JUSTICES'  COURT,  tit.  Jurisdiction,  4,  tit.  Default, 
2;  MOTIONS  AND  ORDERS,  12. 

ARBITRATORS. 
ANSWER,  18,  24. 

ARREST. 

1.  A  sheriff  is  not  privileged  from  arrest.     He  may  be  arrested  in  an 
action  for  damages  for  taking  personal  property  under  an  execution. 
Hill  a.  Lott,  10  How.  Pr.  R.,  46. 

2.  The  defendant  in  an  action  for  the  recovery  of  the  possession  of  real 
estate  and  the  rents  thereof,  cannot  be  imprisoned.     Fullerton  a. 
Fitzgerald,  18  Barb.,  441. 

3.  A  defendant  cannot  be  twice  arrested  by  process  out  of  different 
courts  in  the  same  State,  for  the  same  cause  of  action. 

Where  a  second  arrest  had  been  made,  and  he  moved  for  a  discharge, 
Query1?  whether  the  plaintiff  was  not  entitled  to  an  election  as 
to  which  court  he  would  proceed  in. 

In  such  case,  it  is  the  better  practice  to  reduce  the  bail  to  a  nominal 
amount.  Hernandez  a.  Carnobelli,  10  How.  Pr.  JR.,  433. 

4.  The  recovery  of  a  judgment  upon  a  debt  fraudulently  contracted 
does  not  prevent  the  arrest  of  the  defendant,  either  in  an  action  on 
the  judgment  or  in  a  subsequent  action  for  damages  for  the  fraud. 
Wanzer  a.  De  Baun,  1  E.  D.  Smith's  O.  P.  R.,  261. 

5.  The   original  cause  of  action  is  merged  in  the  judgment  obtained 
thereon,  and  in  an  action  upon  a  judgment  the  defendant  is  not  liable 
to  arrest  upon  the  ground  that  the  judgment  was  obtained  for  moneys 
received  by  him  in  a  fiduciary  capacity.     Goodrich  a.   Dunbar,   17 
Barb.,  644.     But  compare  Mahaney  a.  Penman,  Ante,  34. 

6.  Upon  motion  to  discharge  an  arrest,  the  court  will  permit  a  partial 
trial  of  the  cause. 

The  order  should  be  vacated,  if  the  plaintiff  fails  to  make  out  his  cause 
of  action  and  arrest.  Hernandez  a.  Carnobelli,  10  How.  Pr.  R.,  433. 

7.  A  judge  has  no  jurisdiction  to  issue  a  warrant  under  the  non-impri- 
sonment act  of  1831,  for  the  arrest  of  a  debtor,  on  the  ground  that  he 
has  assigned,  removed,  or  disposed  of,  or  is  about  to  dispose  of  his 
property,  with  intent  to  defraud  his  creditors,  unless  the  charge  is 
established  by  satisfactory  evidence  in  the  form  of  an  affidavit,  pro- 
duced before  the  judge.     A  warrant  issued  without  an  affidavit  con- 
taining evidence  which,  in  the  judgment  of  the  officer  amounts  to 
proof  of  the  charge,  is  void,  and  affords  no  protection  to  the  parties 


492  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

suing  it  out,  when  sued  for  false  imprisonment,  in  directing  an  arrest 
under  it,  (3  Barb.,  189  ;  6  Hill,  429  ;  14  Wend.,  237 ;  7  Hitt,  187  ; 
2  Comst.,  103  ;  5  Barb.,  575  ;  ib.  607.)  Vredenburgh  a.  Hendricks, 
17  Barb.,  179.  And  see  Taylor  a.  Barker,  1  E.  D.  Smith's  C.  P. 
R.,  391. 

COMPLAINT,  5  ;  EVIDENCE,  tit.,  Judgments  and  Judicial  proceedings,  3. 
EXECUTION,  2 ;  MOTIONS  AND  ORDERS,  9 ;  REPLEVIN,  4. 

ASSAULT  AND  BATTERY. 

EVIDENCE,  tit.,  in  certain  actions,  4. 

ASSIGNMENT. 

1.  The  rule  of  law,  that  a  cause  of  action  founded  on  injuries  to  the 
person  is  not  assignable,  has  not  been  altered  by  the  Code.     Purple 
a.  The  Hudson  River  R.  R.  Co.,  Ante,  33. 

2.  But   that   rule  has   no   application   to   a   demand   arising  upon    a 
contract.     Dana  a.  Fiedler,  1  E.  D.  Smith's  C.  P.  £.,  463. 

3.  Nor  to  a  demand  for  personal  property  unlawfully  obtained  from  the 
owner.  Cass  a.  The  New  York  &  New  Haven  R.  R.  Company.  Ib.,  522. 

4.  Allegations  of  a  fraud,  in  a  complaint  upon  contract,  do  not  change 
the    substantial  nature  of  the  cause  of  action,   nor  render  it  non- 
assignable.     Brady  a.  Bissell,  Ante,  76. 

5.  A  bill  of  sale,  of  goods  in  the  possession  of  the  bailee  of  the  vendor, 
is  not  merely  a  transfer  of  a  right  of  action  but  of  the  goods  them- 
selves ;  unless,  indeed,  the  bailee  has  already  converted  the  goods  to 
his  own  use,  or  contests  the  title  of  the  vendor.     Heine  a.  Anderson, 
2  Duer,  318.     Compare  Thurman  a.  Wells,  18  Barb.,  500. 

6.  Whatever  rights  or  choses  hi  action  were  the  subjects  of  assignment 
and  transfer  before  the  Code,  are  so  now,  and  no  others.     Therefore, 
the  mere  right  to  recover  against  common  carriers  for  a  breach  of 
duty,  in  negligently  losing  property  intrusted  to  them,  is  not  assign- 
able, so  as  to  permit  the  assignee  to  sue  in  his  own  name,  notwith- 
standing the  assignment  purports  to  pass  the  property  in  the  goods  as 
well  as  the  cause  of  action.     Thurman  a.  Wells,  18  Barb.,  500.     But 
see  Vogel  a.  Badcock,  Ante,  176  ;  and  also,  Campbell  a.  Perkins,  4 
Seld.,  430. 

7.  It  is  not  necessary  to  allege  the  consideration  of  the  assignment  by 
which  the  plaintiff  claims  title  to  personal  property,  although  such 
assignment  was  made  after  the  conversion  and  during  the  retention. 
Vogel  a.  Badcock,  Ante,  176. 

8.  An  assignment  of  a  chose  in  action  is  not  invalid,  as  against  the 


NEW-YORK.  493 


January — July,  1855. 


defendant,  in  an  action  brought  upon  it  by  the  assignee,  by  reason 
that  it  was  made  without  consideration,  or  that  the  consideration  for 
which  it  purports  to  have  been  made  has  not  been  paid.  Clark  a. 
Downing,  1  JE.  D.  Smith's  C.  P.  B.,  406. 

9.  When  a  plaintiff  transfers  his  interest  after  the  commencement  of  the 
suit,  it  rests  entirely  in  the  discretion  of  the  court,  whether   the 
assignee  shall  be  substituted  as  plaintiff,  under  section  121  of  the 
Code.    And  no  such  order  of  substitution  will  be  made,  unless  special 
circumstances  are  shown,  to  satisfy  the  court  of  its  propriety  or  neces- 
sity ;  and  in  all  cases  it  will  be  made  a  condition,  that  the  original 
plaintiff,  the  assignor,  shall  not  be  examined  as  a  witness  on  behalf 
of  the  assignee.     Murray  a.  The  General  Mutual  Insurance  Com 
pany,  2  Duer,  607. 

10.  An  order  of  the  Surrogate,  directing  the  prosecution  of  an  adminis- 
tration bond,  and  declaring  it  assigned  for  the  purpose  of  being  pro- 
secuted, is   the  mode  of  assignment   contemplated  by  the  statute. 
The  Surrogate  not  being  a  party  to  the  bond,  cannot  assign  it  as 
obligee.     Baggot  a.  Boulger,  2  JDuer,  1 60. 

ATTORNEY,  5  ;  COMPLAINT,  13  ;  DEPOSITION  ON  COMMISSION,  1 ; 
EXAMINATION  OF  ASSIGNOR  ;  PARTIES,  1  ;  PARTNERSHIP,  4  ; 
WITNESS,  tit.,  Competency,  5,  6,  7,  11. 

ATTACHMENT. 

1.  An  immigrant  having  left  forever  his  native  land,  and  living  in  the 
State  of  New  York,  without  any  determination  to  reside  elsewhere, 
is  a  resident.     Heidenbach  a.  Schland,  10'  How.  Pr.  R.,  477. 

2.  Where  the  goods  are  sold  on  credit,  with  an  agreement  that  a  speci- 
fied security  should  be  given,  and  the  purchaser  afterwards  fails  to 
give  the  security,  the  seller  may,  if  the  purchaser  be  a  non-resident, 
have  an  attachment  against  him,  under  the  Code.     The  purchaser  is 
liable  to  be  sued  as  soon  as  his  agreement  to  give  security  has  been 
broken.     If  in  such  case  judgment  were  obtained  before  the  credit 
expired,  the  courts  have  sufficient  equity  powers   over  their   own 
judgments  to  postpone  the  collection  of  the  amount  of  the  judgment 
until  the  credit  should  expire,  or  to  vacate  it,  if  the  security  agreed 
on  should  be  given.     Thus  justice  would  be  done  to  all  parties.   It  is 
not  necessary,  under  the  Code,  that  the  plaintiffs  should  have  a  cause 
of  action  for  the  payment  of  money  merely,  to  have  an  attachment, 
it  is  enough  that  "  a  cause  of  action  exists  against  the  defendant/' 
and  that  the  amount  of  the  claim,  and  the  grounds  thereof,  are  sta- 
ted.    (Code,  §  229).     Ward  a.  Begg,  18  Barb.,  139. 


494  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

3.  On  a  motion  to  set  aside  an  attachment,  affidavits  may  be  read  on 
either  side,  though  the  court  will  not  try  the  merits  of  the  action  on 
conflicting  affidavits,  nor  should  the  attachment  be  set  aside  for  every 
irregularity.     The  Bank  of  Commerce  a.  The  Rutland  and  Wash- 
ington Railroad  Company,  10  How.  Pr.  R.,  1.  Compare  Hernandez 
a.  Carnobelli,  lb.,  433. 

4.  When  a  warrant  of  attachment  is  issued  under  section  231  of  the 
Code,  if  the  sheriff  does  not  choose  to  levy  upon  all  the  property  of 
the  debtor,  he  is  bound  at  his  peril  to  levy  upon  enough  to  satisfy  the 
demand ;  and  if,  by  the  result  of  the   sale,  the  levy  should  prove 
inadequate,   the  sheriff  is  liable  to  the  attaching  creditor  for  the 
deficiency.     Ransom  a.  Halcott,  18  Barb.,  56. 

5.  In  an  application  for  an  attachment  against  a  non-resident  debtor,  it 
is  necessary  that  all  the  facts  which  go  to  give  jurisdiction  should  be 
stated  in  the  application  ;  it  is  not  sufficient  that  they  can  be  inferred 
argumentatively  from  what  appears  in  the  application.     Payne  a. 
Young,  4  Seld.,  158.    See  also  Vredenburgh  a.  Hendricks,  17  Barb., 
179.     But  compare  Renard  a.  Hargous,  2  Duer,  540. 

6.  An  application  for  an  attachment,  under  2  Revised  Statutes,  3,  sec- 
tion 4,  is  sufficient,  though  it  state  in  the  disjunctire,   "  that  the 
debtor  had  departed  from  the  State,  or  was  concealed  within  it,  with 
intent  to  defraud  his  creditors,   or  to  avoid  service,"  &c.     Van  Al- 
styne  a.  Erwine,  1  Kern.,  331. 

7.  The  petition  in  such  case  is  sufficiently  verified,  if,  instead  of  the 
ordinary  jurat  there  is  indorsed  upon  it  an  affidavit  setting  forth  the 
facts  again  in  detail. — lb. 

8.  The  statute  authorizing  attachments  against  the  estate  of  concealed 
debtors,  which  requires  the  testimony  of  disinterested  witnesses,  does 
not  require  affirmative  proof  of  their  freedom  from  interest ;  but 
where  nothing  appears  to  show  that  witnesses  are  interested,  they  are 
presumed  to  be  disinterested ;  and  in  a  collateral  proceeding  proof 
cannot  be  given  to  contradict  the  prima  facie  case  made  by  their  tes- 
timony before  the  officer,  in  order  to  render  his  proceeding  void.    lb. 

9.  The  justices  of  the  Superior  Court  had  authority  from  January  1, 
1830,  to  July  1,  1847,  as  ex  officio  Supreme  Court  Commissioners, 
to  issue  attachments  against  absconding  or  non-resident  debtors,  un- 
der the  revised  statutes.     Renard  a.  Hargous,  2  Duer,  540. 

AMENDMENT,  4  ;  CONTEMPT  ;  COURT,  4 ;  JURISDICTION,  5  ;  JUSTICES' 
COURT,  tit.  Attachment. 


NEW-YORK.  495 


January — July,  1855. 


ATTORNEY. 

1.  The  court  may  compel  an  attorney,  bringing  suits  on  behalf  of  a 
number  of  persons,  as  plaintiffs,  against  one  defendant,  to  disclose  the 
names  and  residences  of  his  clients ;  and  they  may  also  require  him 
to  exhibit  his  authority  to  bring  the  suits.     The  99  Plaintiffs  a.  Van- 
derbilt,  Ante,  193. 

2.  The  court  will  not  compel  a  respectable  and  responsible  attorney  to 
exhibit  in  the  preliminary  stages  of  a  suit  his  authority  to  appear,  or 
his  instructions  in  respect  to  continuing  or  discontinuing  the  action, 
where   no  indicia  of  fraud  are  shown.     The  Republic  of  Mexico  a. 
Arrangois,  Ante,  437. 

3.  The  Code  has  not  abrogated  the  attorney's  lien  upon  a  judgment 
recovered  by  him,  for  the  amount  of  his  costs.     Ward  a.  Wordsworth, 
1  E,  D.  Smith's  G.  P.  R.,  598. 

4.  The  defendant  obtained  judgment   against  the  plaintiff  for  costs. 
The  defendant's  attorney  notified  the  plaintiff  that  he  claimed  a  lien 
against  the  judgment  for  his  costs,  but  the  plaintiff,  notwithstanding, 
paid  the  judgment  to  the  defendant  personally,  and  it  was  regularly 
satisfied  of  record.     On  motion  of  the  attorney  the  satisfaction  of  the 
judgment  was  vacated  to  permit  the  enforcement  of  the  lien.     Ib. 

5.  The  defendant  in  an  action  will  be  allowed  to  set  off  a  judgment  in 
his  favor  for  costs  against  a  judgment  upon  a  verdict  in  favor  of  the 
plaintiffs,  when  the  latter  are  shown  to  be  insolvent,  notwithstanding 
they  had  previously  assigned  the  verdict  to  their  attorney.     Crocker 
a.  Claughly,  2  Duer,  684. 

6.  Although  the  law  now  provides  that  candidates  for  admission  to  the 
bar  shall  be  admitted  as  attorneys  and  as  counselors  at  the  same  time, 
yet  the  offices  are  still  distinct.   VA  counselor  cannot  in  virtue  of  a 
mere  retainer  as  such  authenticate  the  process  and  proceedings  in 
the  cause.     Nor  under  a  retainer  as  attorney  merely  can  a  party 
insist  upon  a  right  to  perform  duties  as  counselor  and  claim  compen- 
sation therefor.     Nor  does  payment  of  a  counsel  fee  discharge  a  claim 
for  services  as  attorney.     Easton  a.  Smith,  1  E.  D.  Smith's  C.  P. 
£.,  319. 

7.  The  decisions  in  this  State  that  attorneys  may  be  held  liable  for 
fees  of  the  officers  of  the  court,  are  in  conflict  with  principle,  and  with 
the  whole  current  of  authorities  elsewhere. 

Such  a  rule  should  not  be  extended  by  analogy. 
A  referee,  whether  in  an  action  at  law  or  in  equity,  is  not  an  officer 
for  whose  fees  an  attorney  is  liable.     Judson  a.  Gray,  1  Kern.,  408. 
CONTEMPT,  6 ;  DEFAULT,  2,  4 ;  JUSTICES'  COURT,  tit.  default,  2,  4. 


496  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

ATTORNEY  GENERAL. 
PARTIES,  10. 

AWARD. 

ANSWER,  18,  24;  COSTS,  4. 

BAIL. 
ARREST,  3  ;  CRIMINAL  LAW,  tit.  Recognizance  and  Bail. 

BANKRUPT  DISCHARGE. 

ANSWER,  27  ;  LIMITATIONS  OF  ACTIONS,  2. 

BILL  OF  PARTICULARS. 

COMPLAINT,  2,  18 ;  JOINDER  OF  ACTIONS,  4. 

CAUSE  OF  ACTION. 

1.  "  Cause  of  action"  is  not  synonymous  with  "chose  in  action."     The 
breach  of  duty  is  the  cause  of  action.     In  a  suit  on  a  bill  of  exchange 
payable  within  this  State  the  cause  of  action  may  be  said  to  arise 
within  this    State.     The  Bank  of  Commerce  a.   The  Rutland  and 
Washington  Railroad  Company,  10  ffow.,  Pr.  R.,  1. 

2.  An  action  on  the  case  against  the  defendants  as  common  carriers  for 
damages,  for  loss  of  goods  intrusted  to  them  is  an  action,  which, 
though  in  form  for  a  wrong,  is  founded  on  contract ;  and  a  discharge 
under  the  bankrupt  act  of  1841  is  a  good  defence  to  it.     Campbell  a. 
Perkins.     4  Seld.,  430. 

AMENDMENT,  1,  2,  4;  ARREST,  4,  5,  6;  ASSIGNMENT,  1,  2,  4,  5,  6; 
ATTACHMENT,  18,  30;  JOINDER  OF  ACTIONS;  PLEADING,  19. 

CERTIORARI. 

A  common  law  writ  of  certiorari  cannot  be  allowed  by  a  judge  or  other 
officer  at  Chambers ;  but  it  is  not  necessary  to  give  notice  of  the 
application  for  the  writ,  to  the  party  against  whom  it  is  sought. 
The  clause  of  the  Judiciary  Act  of  1847,  authorizing  the  allowance 
of  writs  of  certiorari  by  judges  at  Chambers,  applies  to  statutory  writs 
exclusively.  Gardner  a.  Commissioners  of  Highways  of  Warren,  10 
How.,  Pr.  R.,  181. 

CHAMBERS. 
COURT. 

CHATTEL  MORTGAGE. 

The  filing  of  a  chattel  mortgage  by  a  clerk  in  the  store  of  a  town  clerk 
left  in  charge  of  the  town  clerk's  office  during  the  absence  of  thaL. 
officer  is  valid.  (13  Barb.,  326.)  Dodge  a.  Potter,  18  Barb.,  193. 


NEW-YORK.  497 


January — July,   1855. 


2.  The  sheriff  is  not  liable  to  the  mortgagee  of  chattels  for  having 
assumed  to  sell  the  whole  property  in  the  mortgage  chattels,  upon 
execution  against  the  mortgagor,  ignoring  the  lien  of  the  mortgage 
upon  them,  although  he  had  notice  of  the  mortgage.     Such  a  sale 
passes  only  the  interest  of  the  mortgagor,  and  the  mortgagee  is  not 
legally  prejudiced  by  it.     Hull  a.  Carnley,  Ante,  158.     S.  C.  with 
dissenting  opinion  of  Edwards,  J.,  1  Kern.,  501. 

3.  A  mortgagor  of  chattels  cannot,  after  sale  of  the  chattels  to  a  third 
party,  sustain  an  action  to  cancel  the  mortgage  and  notes  secured  by 
it,  and  to  enjoin  proceedings  to  enforce  it,  on  the  ground  of  usury  in 
the  loan  for  which  it  was  given.     James  a.  Oakley,  Ante,  324. 

4.  It  seems  that  the  purchaser  of  personal  property  subject  to  a  mort- 
gage, cannot  avoid  the  mortgage  on  the  ground  of  usury.    Ib. 

EVIDENCE,  tit.  parol  proof  to  explain,  fyc.,  5. 

COMMON  CARRIERS. 

ASSIGNMENT,  6 ;  EVIDENCE,  tit.  in  certain  actions,  5 ;  INN-KEEPER. 

COMPLAINT. 

1.  How  far  it  is  necessary  or  proper  to  deny  in  a  complaint,  facts  which 
are  properly  matters  of  defence.     Hunt  a.  Hudson  River  Fire  Insu- 
rance Company,  2  Duer,  481. 

2.  A  complaint  to  recover  for  money  lent  to,  and  paid,  laid  out  and  ex- 
pended for,  the  defendant  at  his  request,  is  sufficient  under  the  Code ; 
though  Oos  general  in  its  allegations  of  the  particulars  of  the  cause  of 
action  as  the  old  form  of  a  declaration  in  indebitatus  assumpsit.     If 
the  defendant  wishes  a  more  detailed  statement,  his  remedy  is  to  de- 
mand a  copy  of  the  account  or  the  particulars  of  the  cause  of  action. 
Cudlipp  a.  Whipple,  Ante,  106. 

3.  A  complaint  which  merely  states  that  the  defendant  is  justly  indebted 
to  the  plaintiff  for  moneys  had  and  received  by  him  to  the  use  of  the 
plaintiff,  and  that  being  so  indebted,  he  became  liable  to  pay  the 
amount  to  the  plaintiff,  is  bad  upon  demurrer,  for  the  reason  that  it 
simply  affirms  a  legal  conclusion,  without  stating  as  required  by  the 
Code  the  facts  which  constitute  the  cause  of  action.      Lienan  a.  Lin- 
coln,   2  Duer,  670  ;   Drake  a.  Cockroft,  Ante,  203  ;  and  Seeley  a. 
Engell,  17  Barb,  530. 

4.  Allegations  in  a  complaint,  of  circumstances  which  would  be  admis- 
sible upon  the  trial  as  evidence  of  a  fraud  on  the  part  of  the  defend- 
ant, for  which   he  was  prosecuted,  stricken  out  as  irrelevant   and 
redundant.     The  "  facts  to  be  stated,  are  the  facts  which  the  evi- 

32 


498  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

dence  upon  the  trial   will  prove,   not   the   evidence  of  the   facts. 
Wooden  a.  Strew,  10  How.  Pr.  R.,  48. 

5.  In  order  that  the  body  of  defendant  may  be  taken  on  execution  on  a 
judgment  rendered  in  an  action  for  the  recovery  of  a  debt  fraudu- 
lently contracted,  the  complaint  must  aver  the  fraud,  and  the  judg- 
ment  must  find  that  the  fraud  was  committed.    Harris  a.  Cone,  10 
How.  Pr.  R.,  259.      And  compare  Wanzer  a.  De   Baun,  1  E.  D. 
Smith's  0.  P.  R.,  261 ;  Goodrich  a.  Dunbar,  17  Barb.  644. 

6.  A  plaintiff  may  in  some  cases  be  allowed  to  set  up  one  cause  of 
action  in  two  different  counts.     Jones  a.  Palmer,  Ante,  442. 

7.  The  practice  of  setting  forth  a  single  cause  of  action  in  different 
counts  is  abolished  by  the  Code.     Where  a  cause  of  action  is  thus 
pleaded,  the  defendant's  remedy  is  by  a  motion  to  strike  out,  founded 
on  affidavits,  not  by  demurrer.     Lackey  a.  Vanderbilt,  10  How.  Pr. 
R.,  155. 

8.  The  allegations  of  a  count,  which  purports  to  set  out  any  one  cause 
of  action,  should  state  enough  to  make  it  good   in  law.     Landau  a. 
Levy,  Ante,  376. 

9.  Sufficiency  of  a  complaint  drawn  under  section  162  of  the  Code,  in 
an  action  upon  a  bill  of  exchange  against  the  acceptor.     Andrews  a. 
The  Astor  Bank,  2  Duer,  629. 

10.  An  averment  of  the  making  of  a  promissory  note  includes  delivery 
to  the  payee.    A  complaint  which  alleges  that  the  defendant  made 
his   promissory  note  in  writing,  gives  a  copy  of  it   containing  the 
initial  of  the  plaintiff's  Christian  name,  his  surname  in  full,  and  alleges 
that   there  is    due  to  the  plaintiff,  on  the  note,  a  sum  named,   for 
which,  with  interest,    the  plaintiff    claims  judgment,   is    sufficient. 
•Chappell  a.  Bissell,  10  How.  Pr.  R.,  274. 

11.  A  complaint  upon  a  promissory  note  which  does  not  aver  that  the 
amount  claimed  thereon  is  due  from  the  adverse  party,  and  that  it  is 
due  on  the  note,  is  not  conformable  to  section  1 62  of  the  Code.     It  is 
not  sufficient  to  aver  that  the  amount  is  due  to  the  plaintiff.     If  the 
complaint  is  not  drawn  under  that  section,  the  pleader  must  aver 
a  breach,  so  as  to  show  the  default  of  the  defendant.  Keteltas  a. 
Myers,  Ante,  403. 

12.  A  complaint  on  a  promissory  note  must  show  the  plaintiff's  title  to 
the  note  ;  and  an  averment  that  the  note,  before  it  came  due,  was 
duly  delivered  to,  and  came  into  the  possession  of,  the  plaintiff,  with- 
out averring  by  whom  it  was  delivered,  or  for  what  purpose,  or  that  it 
was  indorsed,  is  insufficient.     Parker  a.  Totten,  10  How.  Pr.  R.,  233. 

13.  It  seems,  that  in  an  action  on  a  bill  of  exchange  payable  in  mer 


NEW-YOKE.  499 


January — July,   1855. 


chandise,  an  assignment  for  consideration,  by  the  payee  to  the  plain- 
tiff, should  be  averred.  Landau  a.  Levy,  Ante,  376. 

14.  A  complaint  upon  a  special  contract  should  set  out  its  provisions, 
either  in  form  or  legal  effect,  and  either  allege  performance,  or  state 
facts  which  warrant  a  departure  from  the  terms  of  the  contract,  if 
they  have  not  been  duly  performed.  Brown  a.  Colie,  1  E.  D.  Smith's 
C.  P.  R.,  265. 

15.  In  a  suit  for  damages  on  the  breach  of  a  contract,  the  complaint  is 
defective  unless  it  alleges  an  offer  or  tender  of  performance  on  the 
part  of  the  plaintiff.      Smith  a.  Wright,   Ante,  243 ;  Dunham  a. 
Mann,  4  Seld.,  508 ;  Lester  a.  Jewett,  1  Kern.,  453. 

1 6.  In  an  action  to  recover  damages  for  the  breach  of  a  covenant,  a  gen- 
eral allegation  in  the  complaint,  that  acts  have  been  done  "  in  viola- 
tion of  the  defendant's  agreement,"  is  a  mere  averment  of  a  conclu- 
sion of  law,  and  is  bad  upon  demurrer.     The  complaint  should  show 
facts  from  which  it  appears  that  the  defendant  has  broken  the  cove- 
nant.    Schenck  a.  Naylor,  2  Duer,  675. 

17.  A  complaint  in  an  action  to  recover  the  possession  of  real  estate, 
which  merely  avers  the  plaintiff's  title  to  the  premises,  without  stating 
the  facts  which  prove  that  the  title  which  plaintiff  claims  exists,  is 
bad  upon  demurrer.     Lawrence  a.  Wright,  Ib.,  673. 

18.  Where  the  complaint  in  an  action  for  the  possession  of  real  pro- 
perty gave  a  description  of  the  premises  which  embraced  nothing 
whatever ; — 

Held,  1.  That  the  complaint  contained  no  facts  constituting  a  cause  of 
action,  and  the  defendant  had  his  election  to  demur  or  avail  himself 
of  the  defect  upon  the  trial.  It  was  not  proper  that  he  should  apply 
for  a  bill  of  particulars  or  move  to  have  the  pleading  made  more 
definite  and  certain,  for  the  reason  that  there  was  no  claim  set  up  of 
which  the  particulars  could  have  been  given,  and  nothing  to  be  made 
definite  and  certain. 

2.  That  to  allow  the  plaintiff  to  proceed  with  the  trial  in  such  a  case, 
and  to  permit  him,  if  he  established  the  right  to  recover,  to  take  a  ver- 
dict, and  then  to  amend  his  complaint  in  conformity  with  the  evidence, 
would  not  be  just  to  the  defendant. 

3.  That  the  complaint  was  properly  dismissed  with  leave  to  the  plain- 
tiff to  amend  upon  terms.     Budd  a.  Bingham,  18  Barb.,  494. 

19.  In  an  action  under  2  Rev.  Stats.,  505,  §  30,  to  recover  the  posses- 
sion of  demised  premises  for  non-payment  of  rent,  the  complaint 
need  not  allege  a  demand  of  payment.     No  notice  of  intention  to  re- 
enter  is  necessary  in  such  case,  except  where  there  are  on  the  premi- 


500  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Salutes. 

ses  sufficient  goods  and  chattels  to  satisfy  the  rent.  And  where  it 
appears  on  the  face  of  the  complaint  that  there  were  no  goods  and 
chattels  upon  the  premises,  as  for  example  where  the  premises  are 
described  as  consisting  of  "  a  water  lot,  vacant  ground  and  soil  under 
water,"  it  is  not  necessary  to  aver,  in  so  many  words,  the  want  of  a 
sufficiency  of  goods  on  the  premises  to  satisfy  the  rent.  The  Mayor 
&c.  of  New  York  a.  Campbell,  Ib.,  156. 

20.  In  an  action  to  recover  damages  for  the  wrongful  detention  of  per- 
sonal property,  it  is  not  necessary  to  set  forth  the  plaintiff's  title  in 
the  complaint.     A  general  averment  of  ownership  is  sufficient,  and 
under  it  a  bill  of  sale  from  the  former  owner  may  be  given  in  evi- 
dence.    Heine  a.  Anderson,  2  Duer,  318. 

21.  What  allegations  are  necessary  to  support  a  claim  for  the  delivery 
of  specific  personal  property,  and  for  damages  for  its  detention.    Vo- 
gel  a.  Badcock,  Ante,  176. 

22.  In  an  action  for  the  recovery  of  the  possession  of  personal  pro- 
perty, the  complaint,  although  it  claimed  only  a  part  of  the  property 
mentioned  in  the  affidavit  and  requisition  originally  issued  to  the  sheriff, 
was  held  good,  it  appearing  that  the  other  part  of  the  property  had 
been  taken  from  the  defendant  by  an  attaching  creditor  before  the 
summons  could  be  served.     Kerrigan  a.  Ray,  10  How.  Pr.  R.,  213. 

23.  A  banking  association,  incorporated  under  the  general  banking  act, 
may  sue   in  its   corporate  name  or  in  the  name  of  its   President. 
East  River  Bank  a.  Judah,  Ib.,  135. 

24.  In  an  action  for  a  prize  drawn  in  a  lottery  alleged  to  be  legalized 
by  the  laws  of  the  place  where  it  was  established,  it  is  necessary, 
since  it  is  illegal  by  the  laws  of  this  State,  to  aver  and  prove  that 
where  the  ticket  was  sold  the  contract  was  legal.     Thatcher  a.  Mor- 
ris, 1  Kern.,  437. 

25.  In  an  action  against  the  sureties  in  an  undertaking  given  by  the 
defendant  in  an  action  for  the  return  of  specific  personal  property, 
it  is  not  necessary  to  aver  the  issuing  of  execution  against  the  original 
defendant.     Slack  a.  Heath,  Ante,  331. 

26.  When  an  action  is  founded  upon  an  agreement  void  by  the  statute 
of  frauds  unless  reduced  to  writing,  the  fact  that  it  was  reduced  to 
writing  and   subscribed  as  required  by  statute,  is  one  of  the  facts 
constituting  the  cause  of  action,  and  under  the  Code  must  be  stated 
in  the  complaint.     In  pleading  at  law  prior  to  the  Code,  such  an 
averment  was  hot  necessary.     Thurman  a.  Stevens,  2  Duer,  609 ; 
and  see  Le  Ray  a.  Shaw,  Ib.,  626. 

27.  Where  deceased  having  made  a  sale  of  property  to  defraud  credi- 


NEW-YORK.  501 


January — July,   1855. 


tors,  the  estate  being  insolvent,  the  executor  or  administrator  colludes 
with  the  fraudulent  vendee  or  claims  to  regard  his  title  as  good  and 
refuses  on  reasonable  request  to  proceed  to  test  it,  a  creditor  of  the 
estate  may  join  them  both  as  defendants  in  an  action  to  impeach  the 
sale  and  have  the  property  administered  as  assets.  A  complaint 
which  omits  to  show  the  administrator's  collusion  or  his  concur- 
rence in  upholding  the  sale,  is  bad.  Bate  a.  Graham,  1  Kern,  237. 

28.  Where  two  persons  had  become  joint  assignees  of  a  lease  in  fee 
subject  to  an  annual  rent,  and  the  plaintiff,  who  was  the  devisee  of 
the  lessor,  brought  an  action  against  both  defendants  for  the  whole 
rent  due,  and  alleged  in  his  complaint  that  he  did  not  know  in  what 
proportion  the  defendants  held  the  lands,  or  whether  jointly  or  sever- 
ally, and  prayed  judgment  against  the  defendants  jointly,  if  it  should 
turn  out  they  were  jointly  liable,  or  severally  for  their  proper  por- 
tions if  their  liability  was  several,  and  after  issue  joined  it  appeared 
that  they  were  severally  liable — Held,  that  the  complaint  was  pro- 
perly drawn,  and  that  the  plaintiff  was  entitled  to  recover  from  each 
defendant  the  proper  proportion  of  rent  due  from  him.   Van  Rensse- 
laer  a.  Layman,  10  How.  Pr.  R.,  505. 

29.  In  a  complaint  in  an  action  for  slander,  of  two  counts,  each  alleging 
the  speaking  of  the  same  words,  one  was  held  bad,  the  other  good, 
by  reason  of  difference  in  the  innuendoes.     Butler  a.  Wood,  Ib.  222. 

30.  Causes  of  action  cannot  be  said  to  be  separately  stated,  when  it  is 
necessary  to  recur  to  the  allegations  of  the  count  which  sets  forth  one 
of  them,  to  supply  omissions  in  the  count,  containing  a  statement  of 
the  other.     Landau  a.  Levy,  Ante,  376. 

31.  It  is  essential  that  the  place  of  trial  should  be  clearly  stated  in  the 
complaint,  and  the  omission  to  state  it  is  not  like  a  mere  irregularity. 
This  defect  in  the  complaint  is  not  waived  by  the  obtaining  of  time 
to  answer,  nor  can  it  be  cured  by  reference  to  the  summons.     The 
complaint  in  such  case  must  be  amended  or  stricken  out  as  irregular. 
But  upon  motion  for  such  amendment  before  issue  joined,  the  court 
will  not  fix  upon  a  particular  county  as  the  place  of  trial.     Merrill  a. 
Grinnell,  10  How.  Pr.  £.,31. 

32.  To  entitle  a  person  to  continue  an  action  as  representative  or 
successor  in  interest  of  a  deceased  plaintiff  under  section  121  of  the 
Code,  it  is  necessary  to  show  that  he  has  succeeded  to  his  title. 
And  where  the  petition  asked  that  the  infant  son  and  the  devisee  in 
trust  of  the  deceased  plaintiff  be  substituted  as  plaintiff,  or  if  that  could 
not  be  done,  that  the  court  would  decide  which  of  the'  two  was  the 
legal  successor  and  substitute  him,  and  it  appeared  that  the  son  was 


502  ABBOTTS'  PEACTICE  DIGEST. 

Reports  and  Statutes. 

an  alien,  and  the  devisee  in  trust  took  only  a  power  in  trust,  not  the 
legal  estate.     Held,  that  neither  one  nor  both  together  could  be  sub- 
stituted as  plaintiff;  neither  of  them  was  the  successor  in  interest  of 
the  deceased  plaintiff.     St.  John  a.  Croel,  10  How.  Pr.  R.,  253. 
AMENDMENT  ;  APPEAL,  5  ;  INJUNCTION,  4  ;  JOINDER  OF  ACTIONS,  1 ; 
PLEADING  ;  SURROGATE'S  COURT,  2. 

CONFESSION  OF  JUDGMENT. 
JUDGMENT,  15,  16,  17,  18;  JUSTICES'  COURT,  tit  Trial,  1. 

CONTEMPT. 

1.  The  history  of  the  practice  of  punishment  as  for  contempt  reviewed. 
Dusenberry  a.  Woodward,  Ante,  443. 

2.  Process  of  attachment  to  enforce  a  surrogate's  decree,  in  a  form 
similar  to  that  used  in  Chancery  in  analogous  cases,  approved. 

It  is  not  necessary  that  the  attachment  should  recite  all  the  proceed- 
ings in  such  case.  If  the  cause  is  substantially  stated,  and  one  in  a 
matter  of  which  the  surrogate  has  jurisdiction,  it  is  prima  facie  protec- 
tion to  all  engaged  in  the  arrest.  Seaman  a.  Duryea,  1  Kern.,  324. 

3.  An  attachment  may  issue  against  a  guardian  for  non-compliance  with 
the  surrogate's  decree  striking  the  balance  upon  a  final  accounting, 
and  ordering  payment  of  the  amount.     Ib. 

4.  The  failure  of  a  witness  to  attend  a  trial   pursuant  to  subprena 
should  be  excused  upon  slight  grounds  where  the  notice  given  him 
is   unreasonably   short.     Chalmers   a.   Melville,    1    E.  D.   Smith's 
G.  P.  R.,  502. 

5.  It  seems  that  a  defendant  in  contempt  for  non-compliance  with  an 
order  requiring  him  to  satisfy  part  of  the  plaintiff's  claim  admitted  to 
be  just,  may  show  his  inability  to  comply  as  an  excuse  for  the  ap- 
parent contumacy.     Meyers  a.  Trimble,  Ante,  399. 

6.  Where  the  attorney  of  a  party  proceeded  with  an  appeal  in  violation 
of  an  order  staying  proceedings  on  the  appeal,  a  motion  for  a  warrant 
of  attachment  against  the  party  himself  was  refused.     The  court  will 
not  presume  that  any  illegal  act  of  an  attorney  in  conducting  a  suit 
has  the  party's  sanction,  unless  it  be  expressly  proved  that  he  ap- 
proved of  directed  it.     Harris  a.  Clark,  10  How.  Pr.  R.,  415. 

7.  The  propriety  of  an  injunction  issued  by  the  court,  upon  notice,  will 
not  be  reviewed  on  appeal  from  an  order  granting  attachment  for 
disobedience  to  it.     The  defendant  should  have  appealed  from  the 
injunction  itself.     Grimm  a.  Grimm,  1  E.  D.  Smith's  C.  P.  R.,  190. 

MOTIONS  AND  ORDERS,  6;  SATISFACTION  OF  PART  OF  PLAINTIFF'S 
CLAIM,  8;  SESSIONS,  6;  SUPPLEMENTARY  PROCEEDINGS,  1,  2. 


NEW-YORK.  503 


January — July,    1855. 


CORPORATION. 

1.  A  corporation  is  composed  of  the  aggregate  body  of  individual  cor- 
porators under  the  charter ;  and  is  in  no  sense  a  trustee  for  the  in- 
dividual  corporators.      New  York  &  New  Haven  Railroad  Com- 
pany a.  Schuyler,  Ante,  417. 

2.  The  theory  of  religious  corporations  and  the  power  of  Courts  of 
Equity  over  their  officers  discussed.    Robertson  a.  Bullions,  1  Kern., 
243. 

3.  An  order  of  the  chancellor  according  to  the  provisions  of  3  Rev. 
Stats.,  210,  §  11,  was  never  necessary  to  enable  a  religious  corpora- 
tion purchasing  land  to  execute  a  mortgage  for  the  purchase  money. 
South  Baptist  Society  of  Albany  a.  Clapp,  18  Barb.,  35. 

4.  One  foreign  corporation  may  sue  another  in  the  courts  of  this  State 
upon  a  cause  of  action  arising  in  it.     The  Bank  of  Commerce  a.  The 
Rutland  &  Washington  Railroad  Company,  10  How.  Pr.  R.,  1. 

5.  A  suit  against  a  foreign  corporation  may  be  brought  either  under 
the  Code  or  under  the  provisions  of  2  Revised  Statutes,  459,  §  15, 
&c.,  which  are  not  repealed  by  the  Code.     Ib. 

6.  Sales  of  unclaimed  freight,  by  express  companies, — provided  for. 
Laws  of  1855,  958,  ch.  523. 

7.  Where  the  officers  of  a  stock  company  fraudulently  issued  certificates 
of  stock  to  a  large  amount,  making  certificates  of  a  greater  number 
of  shares  than  the  charter  authorized,  in  consequence  of  which  the 
company  became  insolvent,  and  made  an  assignment  for  the  benefit 
of  creditors,  an  injunction  forbidding  the  transfer  of  stock  by  the 
officers  of  the  company,  was  granted,  and  continued  until  the  ques- 
tions arising  out  of  the  fraud  could  be  disposed  of  either  by  the  leg- 
islature or  the  courts.     The  People  a.  Parker  Vein  Coal  Company, 
10  How.  Pr.  R.,  186 ;  S.  C.  affirmed,  Ib.,  543. 

8.  Per  MOKRIS,  J.    Such  certificates  of  stock  are  not  binding  on  the 
company.     The  remedy  of  the  holders  of  the  stock  is  against  the 
party  issuing  them.     Ib.  543.     But  see  N.  Y.  &  New  Haven  R.  R. 
Co.  a.  Schuyler,  Ante,  417. 

9.  In  an  action  brought  by  a  corporation  to  recover  a  sum  of  money 
loaned  to  the  defendant,  the  latter,  having  had  the  benefit  of  the  con- 
tract of  loan,  cannot  be  permitted  to  avail  himself  of  the  defence  that 
the   corporation  plaintiff  had  no  authority  under  the  terms  of  its 
charter  to  make  the  loan.     The  Steam  Navigation  Company  a.  Weed 
17  Barb.,  378. 

10.  Otherwise,  perhaps,  when  the  contract  was  entered  into  by  the  cor- 
poration plaintiff  in  violation  of  an  express  statutory  prohibition.    Ib. 


504  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

11.  Suits  against  the  stockholders  of  plank  road  and  turnpike  corpora- 
tions, to  enforce  their  individual  liability  upon  the   contracts  of  the 
company,  may  be  brought  in  the  Supreme  Court  after  judgment  had 
against  the  corporation,  and  execution  thereon  is  returned  unsatisfied. 
The  court  shall  have  jurisdiction  in  such  case,  to  enforce  payment  by 
any  stockholder,  of  arrears  due  on  his  stock,  to  ascertain  all  the  debts 
of  the  corporation  for  which  stockholders  are  individually  liable,  and 
to  apportion  all  the  indebtedness  among  the  stockholders,  and  enforce 
payment  by  judgment  and  execution.     Stockholder,  when  a  creditor, 
may  unite  as  plaintiff  in  such  suit.     The  Court  in  such  suit  to  possess 
the  powers  exercised  by  Chancery  in  proceedings  against  corporations. 
Limitations  of  time  in   which  creditors  may  come  in  as  plaintiffs. 
Distribution  of  moneys  recovered.     Laws  of  1855,  736,  ch.  390. 

12.  If  it  appears  from  the  complaint  filed  by  a  creditor  of  a  manufac- 
turing corporation  in  the  county  of  Herkimer,  against  a  stockholder, 
to  enforce  the  individual  liability  of  the  latter,  that  the  company  was 
dissolved  under  the  act  of  April  16,  1852,  that  fact  will  be  fatal  to 
the  action.     Herkimer  County  Bank  a,  Furman,  17  Barb.,  116. 

13.  But  if  the  complaint  merely  alleges  the  dissolution  of  the  corpora- 
tion, without  showing  that  it  was  dissolved  under  that  act,  the  court 
will  not  on  demurrer  assume  that  it  was.     Ib. 

14.  The  act  of  April  5th,  1849,  respecting  examinations  into  the  sol- 
vency of  corporations,  intends  a  rapid  and  summary  remedy  ;  and 
delay  to  save  the  interests  of  the  stockholders  is  not  to  be  favored. 
In  the  matter  of  the  Knickerbocker  Bank,  10  How.  Pr.  R.,  341. 

ANSWER,  10,  11 ;  INJUNCTION,  10;  MANDAMUS,  2;  PLEADING,  28; 
SERVICE  AND  PROOF  OF,  7 ;  SUPPLEMENTARY  PROCEEDINGS,  3 ; 
TRIAL,  tit.  Place  of  trial,  2. 

COSTS. 

1.  The  old  Chancery  fee  bill  has  not  been  repealed  by  the  Code.     It  is 
still  in  force,  but  it  is   only  applicable  to  proceedings  had  prior  to 
July,  1851,  in  equity  suits   commenced  before  the  Code.     Curtis  a. 
Leavitt,  Ante,  118. 

2.  Held,  in  an  equity  suit  commenced  before  the  Code,  that  costs  of  all 
proceedings  prior  to  July,  1851,  must  be  taxed  according  to  the  fee 
bill ;  those  of  all  subsequent  proceedings  according  to  the  Code.     Ib. 

3.  In  actions  at  Common  Law,  pending  in  Courts  of  Record  when  the 
Code  took  effect,  and  tried  afterwards,  the  right  to  costs,  and  the  rate 
of  compensation,  are  governed  by  the  statutes  in  force  at  the  time 
the  Code  took  effect ;  but  costs  of  proceedings  subsequent  to  the  ver- 


NEW-YORK.  505 


January — July,    1855. 


diet,  to  review  decisions  made  at  the  trial,  and  taken  in  the  mode 
prescribed  by  the  Code,  are  governed  by  the  provisions  of  the  Code. 
McMasters  a.  Vernon,  Ante,  179. 

4.  In  an  action  brought  against  several  joint  defendants  to  vacate  an 
award   of  arbitrators,  the  defendants   appeared   by  separate  attor- 
neys, and  interposed  separate  demurrers,  which  were  allowed,    Held, 
that  each  defendant  was  not  entitled  of  course  to  a  full  bill  of  costs, 
and  that  they  erred  in  entering  up  judgment  with  costs  without  notice 
of  settlement  to  the  plaintiff.     Wood  a.  Brooklyn  Fire  Ins.  Co.,  10 
How.  Pr.  R.,  154. 

5.  It  appearing  upon  the  trial  of  an  action  brought  against  seven  defen- 
dants, that  five  of  them  only  were  liable,  the  plaintiff  moved  to  strike 
out  the  names  of  the  other  two ;  his  motion  was  granted,  with  the 
addition  that  he  pay  their  costs,  and  judgment  was  rendered  in  favor 
of  the  two  for  their  costs,  and  against  the  five  for  debt  and  costs. 
Held,  that  the  allowance  of  costs  to  the  two  defendants  severed  was 
properly  made.     Marks  «.  Bard,  Ante,  63.     Compare  Woodburn  a. 
Chamberlin,  17  Barb.,  446. 

6.  In  an  action  for  a  tort,  against  two  defendants,  when  a  verdict  is  ren- 
dered in  favor  of  one  defendant,  and  against  the  other,  the  defendant 
prevailing  is  entitled  as  matter  of  course,  to  costs,  under  section  305 
of  the  Code.     Decker  a.  Gardiner,  4  Seld.,  29. 

7.  Upon  a  bill  of  interpleader,  the  unsuccessful  claimant  adjudged  to 
pay  all  costs  recovered  by  the  plaintiff,  and  also  all  costs  of  his  co- 
defendant,  both  upon  the  bill  and  in  an  action  at  law  between  the 
claimants  upon  the  same  subject.     Miller  a.  DePeyster,  Ante,  234. 

8.  Where  the  answer  does  not  put  in  issue  the  plaintiff's  right  to  pos- 
session of  lands,  but  only  his  actual  possession,  the  title  of  the  land 
is  not  in  issue  so  as  to  entitle  the  plaintiff  to  costs  on  recovering  less 
than  $50,  although  some  evidence  is  adduced  upon  the  trial  which 
tends  to  show  the  plaintiff's  title ;  e.  g.,  where  he  introduces  his  title- 
deeds.     Burnet  a.  Kelly,  10  How.  Pr.  R.,  406. 

9.  The  defeated  party  in  an  action  in  the  nature  of  a  writ  of  quo  war- 
ranto,  is  liable  to  the  other,  as  well  for  the  ordinary  costs  of  the 
action,  as  for  an  extra  allowance.     The  People  a.  Cook,  4  Seld.,  67. 

10.  Where  a  married  woman,  suing  for  a  divorce,  appears  by  her  next 
friend,  the  requiring  the  next  friend  to  give  security  for  costs  is  a 
regulation  of  practice  entirely  the  creature  of  the  court,  and  under 
its  control.     As  a  general  rule  the  husband  is  to  pay  the  costs  in 
these  cases,  whether  he  succeeds  or  fails.     At  the  termination  of  the 
suit,  it  is  true,  the  court  may  decree   the  wife  to  pay  the  costs  ;  but 


506  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

this  never  would  be  done  unless  there  were  great  misconduct  in  com- 
mencing or  prosecuting  the  suit.  The  only  thing  necessary  to  pro- 
vide against,  is  such  misconduct  as  would  subject  the  wife  to  the  pay- 
ment of  costs.  To  accomplish  this,  it  is  enough  to  allow  the  wife  to 
appear  by  any  next  friend  whom  the  court  may  appoint  on  her  appli- 
cation, without  security,  and  to  allow  him  to  continue  to  act  until  some 
abuse  occurs,  and  then  to  remove  him  and  dismiss  the  complaint  unless 
he  give  security,  or  another  next  friend  be  substituted,  whose  charac- 
ter and  responsibility  will  be  a  protection  against  further  abuse. 
Thomas  a.  Thomas,  18  Barb.,  149. 

11.  In  an  action  upon  a  contract,  at  issue  and  noticed  for  trial,  the  plain- 
tiff accepted  the  offer  of  the  defendant  to  allow  him  to  take  judgment 
for  $49.50.     Held,  that  the  defendant  was  entitled  to  costs  ;  and  that 
the  entry  of  the  costs  by  the  clerk  without  order  of  the  court,  was 
regular,  although  execution  had  been  issued  by  the  plaintiff,  and  the 
judgment  had  been  paid  by  the  defendant,  the  judgment  not  having 
been  satisfied  of  record.     Johnson  a.  Sagar,  10  How.  Pr.  R.,  552. 

12.  Where  judgment  for  the  plaintiff  in  the  Marine  Court  is  reversed 
in  the  Common  Pleas,  and  judgment  is  not  ordered  for  the  defendant, 
but  the  plaintiff  is  left  to  prosecute  his  action  further,  if  so  advised, 
the  defendant  is  not  entitled  to  have  the  costs  incurred  by  him,  in 
defending  the  suit  in  the  Marine  Court,  inserted  in  the  adjustment 
of  the  costs,  on  appeal.     Ellert  a.  Kelly,  10  How.  Pr.  R.,  392. 

13.  On  the  reversal  of  a  judgment  of  a  justice  of  a  district  court,  the 
appellant  is  entitled  to  those  costs  of  the  court  below  to  which  he 
would  have  been  entitled,  if  the  proper  judgment  had  been  rendered 
there.     Jacks  a.  Darrin,  Ante,  232. 

14.  A  motion  for  a  new  trial,  on  the  ground  that  the  verdict  is  against 
evidence,  raises  an  issue  of  fact.    The  party  taking  costs  is  entitled  to 
$10  term  fee,  for  every  term  at  which  the  case  is  necessarily  on  the 
calendar  and  not  reached,  or  postponed,  exclusive  of  that  at  which  it 
is  heard,  and   $12,  trial  fee.     Mechanics'  Banking  Association  a. 
Kiersted,  10  How.  Pr.  R.,  400. 

15.  On  motion  for  a  new  trial,  costs  as  on  a  motion  and  not  as  on  a 
trial  are  to  be  allowed.     (Ellsworth  a.  Gooding,  8  How.  Pr.  R.,  1 ; 
dissented  from,  per  HUBBARD,  J.)     Potsdam  and  W^tertown  R.  R. 
a.  Jacobs,  10  How.  Pr.  R.,  453. 

16.  On  the  trial  at  a  circuit,  a  verdict  was  directed  for  the  plaintiff, 
subject  to  the  opinion  of  the  court,  at  general  term.     A  case  was 
then  made  and  argued,  and  judgment  ordered  for  the  plaintiff,  with 
costs. — Held,  that  the  plaintiff  was  entitled  to  a  trial  fee,  as  in  case 


NEW-YORK.  507 


January — July,    1855. 


of  a  trial  of  an  issue  of  law,  besides  his  disbursements.     Wilcox  a. 
Curtiss,  Ib. 

17.  Where,  after  argument  upon  the  merits,  in  the  Court  of  Appeals, 
an  appeal  was  dismissed  with  costs. — Held,  that  the  respondent  was 
entitled  to  general  costs,  not  merely  costs  of  the  motion  to  dismiss. 
Webb  a.  Norton,  Ib.  117. 

18.  Where,  upon  judgment  for  plaintiff,  on  demurrer,  leave  to  answer 
is  granted,  upon  payment  of  the  costs  of  the  demurrer,  the  costs 
intended  are  as  upon  a  motion.     Roberts  a.  Clark,  Ib.,  451. 

19.  An  appeal  from  the  decision  of  the  court,  upon  a  demurrer,  is  an 
appeal  from  an  order  on  an  enumerated  motion,  and  the  party  pre- 
vailing is  entitled  to  the  full  costs  of  appeal.     Richards  a.  Cook,  1 
E.  D.  Smith's  G.  P.  R.,  386. 

20.  Taxation  of  costs  and  the  insertion  of  their  amount  in  the  entry  of 
judgment,  are  not  stayed  by  an  appeal  with  security.     Curtis  a 
Leavitt,  Ante,  118. 

21.  In  entering  judgment  in  the  court  below,  upon  remittitur  from  the 
Court  of  Appeals,  the  costs  of  the  appeal  should  be  adjusted  by  the 
clerk  of  the   court  below,    and  inserted  in  the  entry   of  judgment 
in  that  court.     The  Union  India    Rubber   Company  a.    Babcock, 
Ante,  262. 

22.  Where  an  appellant  from  the  special  to  the  general  term  deposits 
a  sum  of  money  instead  of  giving  an  undertaking,  and  appeals  from 
the  general  terms  to  the  Court  of  Appeals,  giving  the  proper  under- 
taking with  sureties,  the  money  so  deposited  must  remain  in  court 
until  a  final  determination   in  the  Court  of  Appeals.     Parsons   a. 
Travis,  2  Duer,  659. 

23.  The  statute   respecting   security   for   costs    (2   Rev.  Stats.  260J, 
construed.     Butler  a.  Wood,  10  How.  Pr.  R.,  313. 

24.  After  an  order  overruling  a  demurrer,  with  leave  to  answer  on 
payment  of  costs,  the  defendant  while  in  default  of  the  payment  is 
not  entitled  to  security  of  costs  from  the  plaintiff,  if  the  plaintiff 
becomes  a  non-resident.     Ib. 

25.  Where,  under  an  order  upon  the  plaintiff  to  file  security  for  costs, 
an  undertaking  executed  by  two  sureties  is  filed,  the  qualification  of 
one  of  the  sureties  upon  exceptions,  is  sufficient.     Riggins  a.  Wil- 
liams, 2  Duer,  678. 

DISCONTINUANCE,  1,  5,  6;  MOTIONS  AND  ORDERS,  4;  STAY  OF  PRO- 
CEEDINGS, 4 :  TRIAL,  tit.,  Nonsuit,  5. 


508  ABBOTTS'  PEACTICE  DIGEST. 

Reports  and  Statutes. 

COUNT. 

AMENDMENT,  1,2;   ANSWER,  26  ;   APPEAL,  5  ;    COMPLAINT,  6,  7,  8, 
30 ;  CRIMINAL  LAW,  tit.  Indictment,  3,  9. 

COUNTER  CLAIM. 

1.  What   constitutes    a   counter  claim  under  the  Code.     Gleason  a. 
Moen,  2  Duer,  639. 

2.  Instance  of  a  counter  claim  held  bad  on  demurrer.      Berdell  a. 
Johnson,  18  Barb.,  559. 

3.  In  an  action  by  a  landlord  to  recover  rent,  the  tenant  cannot  set  up 
as  counter  claim  a  mere  trespass  upon  the  demised  premises  and  the 
destruction  of  personal  property,  committed  by  the  landlord.     Drake 
a.  Cockroft,  Ante,  203.     And  see  the  Mayor,  &c.  of  New  York  a. 
Mabie,  2  Duer,  401. 

4.  Nor  can  he  set  off  or  recoup  such  damages.    Levy  a.  Bend,  1  E.  D. 
Smith's  C.  P.  R.,  169.    But  compare  Downing  a.  De  Klyn.    Ib.  563. 

5.  Whether  in  actions  at  law  the  Code  has  extended  the  doctrine  of 
recoupment   to   any  cases   to  which   it   did   not  previously  apply ; 
Query  ?     Drake  a.  Cockroft,  Ante.  203. 

DISCONTINUANCE,  2,3;  EXAMINATION  OF  PARTIES,  2 ;  PLEADING,  18. 

COUNTY  COURT. 

1.  County  courts  are  not  inferior  courts  within  the  rule  which  requires 
that  everything  requisite  to  give  jurisdiction  should  appear  specifi- 
cally upon  the  record.     Although  their  jurisdiction  is  in  certain  res- 
pects limited   by  statute,    they  are    nevertheless   courts    of  record 
proceeding  according  to  the  course  of  the  common  law,  and  having 
each  a  clerk  and  a  seal.     They  are  courts  of  general  jurisdiction  as 
to  kinds  or  classes  of  civil  actions.     They  are  in  their  nature,  con- 
stitution, machinery,  and  practice,  common  law  courts.     They  are 
held  by  judges,  and  practised  in  only  by  admitted  attorneys.     Their 
records  come  within  the  class  of  records  entitled,  when  duly  authen- 
ticated, under  the  act  of  Congress,  to  full  faith  and  credit  in  other 
States.     Jurisdiction  will  therefore  be  intended  in  favor  of  county 
courts  -when  the  contrary  does  not  expressly  appear. 

Therefore,  where  on  appeal  from  a  judgment  of  a  county  court,  it 
was  objected  that  it  did  not  appear  that  the  defendants  were  all  resi- 
dents of  the  county  at  the  time  of  the  commencement  of  the  action, 
— Held,  that  their  jurisdiction  would  be  presumed,  and  the  judgment 
must  be  affirmed.  Kundolf  a.  Thalheimer,  17  Barb.,  506. 

2.  The  county  judge  of  each  of  the  counties  .of  the  State  authorized  to 


NEW  TORE.  509 


January — July,   1855. 


appoint  a  crier  of  the  courts  of  record  of  the  county,  to  hold  office 
during  pleasure  of  such  county  judge.     Laws  of  1855,  973,  ch.  530. 
EVIDENCE,  tit.  Judgments  and  Judicial  Proceedings,  3. 

COURT. 

1.  There  is  but  one  Supreme  Court,  whether  the  judges  holding  it  be 
at  general  or  special  term ;  and  powers  conferred  by  statute  may  be 
exercised  at  either  term,  unless  there  be  some  statute  specially  re- 
stricting the  power  of  the  court.     Tracy  a.  Talmadge,  Ante,  460. 
Anonymous  a.  Anonymous,  10  How.  Pr.  R.,  353. 

2.  Where,  under  an  order  of  special  term,  that  the  report  of  a  referee 
be   confirmed,  unless  cause  to  the  contrary  be  shown  within  eight 
days,  a  party  filed  exceptions  to  the  referee's  finding,  and  an  order 
was   entered,  that   all  the   proofs   and   testimony  taken   before   the 
referee  come  before  the  court  on  the  hearing  of  the  exceptions,  and 
the  cause  was  placed  on  the  general  term  calendar  for  hearing — a 
motion  that  it  be  struck  off,  on  the  ground  that  it  should  be  heard  in 
the  first  instance  at  special  term,  was  denied. 

The  motion  to  set  aside  the  report  of  the  referee  might  properly  be 
made  either  at  special  or  general  term,  according  to  convenience. 
Tracy  a.  Talmadge,  Ante  460. 

3.  In  the  Supreme  Court,  a  motion  to  dissolve  an  injunction,  granted 
by  a  judge  at  chambers,  may  be  made  directly  to  the  court,  without 
a  prior  application  to  the  same  judge  to  revoke  it.     Such  was  the 
old  practice,  and  section  225  of  the  Code,  authorizing  an  application 
to  a  judge  out  of  court,  is  merely  permissive,  and  does  not  abridge 
the   general  jurisdiction   of    the    court.      Woodruff  a.    Fisher,    17 
Barb.,  224. 

4.  So  of  a  motion  to  discharge  an  attachment.     Bank  of  Commerce 
a.  The   Rutland  and  Washington   Rail  Road   Company,  10   How. 
Pr.  R.,  1. 

5.  One  justice  of  the  Supreme  Court,  sitting  at  special  term,  will  not 
set  aside  an  order  staying  proceedings  made  by  another  justice  at 
special  term,  on  the  ground  that  it  was  improvidently  granted.    Har- 
ris a.  Clark,  10  How.  Pr.  R.,  415. 

6.  The  plaintiff  sued  in  the  Supreme  Court  upon  one  of  two  promis- 
sory notes,  given  upon  the  same  transaction  and  consideration,  and 
while  the  question  of  fraud  raised  by  the  defence  was  at  issue  there, 
he  sued  upon  the  other  note  in  the  marine  court,  and  judgment  was 
there  had  upon  the  same  issue  for  the  defendants.     The  defendant 
showing  this  by  a  supplemental  answer  in  the  first  action, — Held,  by 


510  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

the  Supreme  Court,  that  the  *ame  question  having  been  decided 
between  the  same  parties  in  a  court  of  competent  jurisdiction,  judg- 
ment must  be  for  defendant  accordingly.     Higgins  a.  Mayer,  Ib.  363. 
CERTIORARI  ;    CRIMINAL  LAW,  tit.  Trial,  4,  5,  6 ;   IMPRISONMENT  ; 
SEE  ALSO  VARIOUS  COURTS  ;  STAY  OF  PROCEEDINGS,  3. 

COURT  OF  APPEALS. 

APPEALS,  6,  7,  8,  10,  11,  12,  16;  JURISDICTION,  6,  7;  CERTIORARI; 
CRIMINAL  LAW,  tit.  Trial,  4,  5,  6 ;  IMPRISONMENT  ;  SEE  VARIOUS 
COURTS  ;  STAY  OF  PROCEEDINGS,  3. 

COVENANT. 

Recovery  of  judgment  in  an  action  for  breach  of  covenant  and  satisfac- 
tion thereof,  is  a  bar  to  an  action  for  other  breaches  of  the  same 
covenant,  which  occurred  before  the  first  action  was  brought.  Cog- 
gins  a  Bulwinkle,  1  E.  D.  Smith's  C.  P.  R.,  434. 

COMPLAINT  16;  EVIDENCE,  tit.  In  certain  actions,  3. 

CRIMINAL  LAW. 

[ACCESSORY;    ACQUITTAL;    APPEAL,   8;    OATH;    PERJURY;    SES- 
SIONS, 37.] 
I.  Indictment. 

1.  A  party  ought  not  to  be  indicted  unless  the   evidence  before  the 
grand  jury  is  sufficient  in  degree  to  convict  if  unexplained.     The 
People  a.  Baker,  10  How.  Pr.  R.,  567. 

2.  An  indictment  should  be  quashed  when  it  clearly  appears  by  affida- 
vit that  it  was  found  by  the  grand  jury  without  adequate  evidence  to 
support  it.     The  People  a.  Restenblatt,  Ante,  268. 

3.  One  good  count  in  an  indictment  is  sufficient  to  support  a  general 
verdict  of  guilty,  however  defective  the  others  may  be.     The  People 
a.  Stein,  1  Parker  s  Cr.  R.,  202.     And  see  Baron  a.  The  People, 
Ib.  246. 

4.  Form  of  an  indictment  for  perjury  committed  in  falsely  swearing 
that  usurious  interest  was  taken  in  discounting  a  promissory  note. 
The  People  a.  Burroughs,  1  Parker  s  Cr.  R.,  211. 

5.  Averment  of  mutual  promises  of  marriage  not  necessary  in  an  in- 
dictment drawn  under  the  act  of  1848,  to  punish  seduction  as  a 
crime.     Crozier  a.  The  People,  1  Parker's  Cr.  JR.,  453. 

6.  Necessary  averments  in  an  indictment  for  receiving  embezzled  or 
stolen  goods.     The  People  a.  Stein,  Parkers   Cr.  R.,  202.     The 
People  a.  Johnson,  Ib.  564. 

7.  An  indictment  charging  the  defendant  with  two  distinct  offences  to 


NEW-YORK.  511 


January — July,  1855. 


which   different   punishments    are   attached,   is   bad   for   duplicity. 
Reed  a.  The  People,  1  Parkers  Or.  £.,  481. 

8.  Form  of  indictment  for  petit  larceny  charged  as  a  second  offence. 
The  People  a.  Caesar,  1  Parker  s  Or.  R.,  645. 

9.  Held  at  circuit,  that  on  an  indictment  which  contains  several  counts 
charging  the  same  offence  in  different  forms,  the  prosecution  is  not 
compellable  to  elect  upon  which  they  will  proceed.     The  People  a. 
Austin,  1  Parker's  Cr.  R.,  154. 

10.  The  defendant  may  avail  himself  of  the  omission  of  any  material 
averment  in  an  indictment,  by  demurrer,  writ  of  error,  or  motion  in 
arrest  of  judgment.     The  People  a.  Johnson,  1  Parker's  Cr.  R.,  564. 

SESSIONS,  3. 
II.  Recognizance  and  Bail. 

1.  On  an  application  to  be  admitted  to  bail  after  indictment  the  de- 
fendants cannot  introduce  evidence  tending  to  show  their  innocence 
of  the  offence  charged.     The  People  a.  Baker,  10  How.  Pr.  R.,  567. 

2.  The  court  will  in  all  cases,  capital  or  otherwise,  and  after  as  well  as 
before  indictment,  admit  to  bail,  when  upon  an  examination  of  the 
testimony  under  which  the  accused  is  held,  the  presumption  of  guilt 
is  not  strong — and  they  are  particularly  called  upon  to  bail  in  all 
cases  when  the  presumptions  are  decidedly  in  favor  of  the  innocence 
of  the  accused.     The  People  a.  Baker,  10  How.  Pr.  JR.,  567. 

3.  A  recognizance  to  appear  and  answer  to  a  criminal  charge  must  be 
to  the  next  court  having  cognizance  of  the  offence,  and  in  which  the 
prisoner  may  be  indicted ;  and  a  recognizance  to  appear  at  court 
subsequent  to  the  next  court, — Held,  void.     The  People  a.  Mack, 
1  Parkers  Cr.  R.,  567. 

4.  A  recognizance  taken  pursuant  to  2  Rev.  Stats.,  746,  §  24,  must  be  en- 
tered in  the  minutes  of  the  court ;  and  the  entry  must  contain  all  the 
substantial  parts  of  the  indebtedness.     An  entry  of  the  fact  that  a 
recognizance  was  taken,  is  not  sufficient.     The  People  a.  Graham, 
1  Parkers  Cr.  R.,  141. 

5.  Provisions  of  the  Code  applied  to  all  recognizances  forfeited  in  any 
court  of  General  Sessions  of  the  peace,  or  of  Oyer  and  Terminer ; 
and  all  laws,  or  parts  of  laws,  conflicting  with  such  application  re- 
pealed.     Costs  upon  proceedings  upon  forfeited  recognizances  not 
chargeable  to  the  mayor,  commonalty,  aldermen,  or  supervisors  of 
New  York  City,  by  the  prosecuting  officer.     Laws  of  1855,  306; 

ch.  202. 

III.  Evidence. 

1.  Where  two  persons  are  jointly  indicted,  one  is  not  admissible  as 
witness,  either  for  or  against  the  other,  until  he  has  first  been  ac- 


512  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

quitted  or  convicted.  This  rule  is  not  on  the  ground  of  interest. 
Where  one  co-defendant  in  an  indictment  had  been  examined  on  the 
trial,  without  being  previously  discharged  from  the  record,  a  new 
trial  was  ordered.  The  People  a.  Donnelly,  Ante,  459. 

2.  A  person  convicted  of  perjury  is  not  restored  to  competency  as  a 
witness  by  being  pardoned.     Houghtaling  a.  Kelderhouse,  1  Parker's 
Cr.  R.,  241. 

3.  On  the  trial  of  defendant  for  murder  his  sworn  statement  voluntari- 
ly made  after  his  arrest  on  the  examination  of  another  party  then 
charged  with  the  offence,  is  admissible  against  him.     The  People  a. 
Thayer,  1  Parker's  Cr.  R.,  595. 

4.  Statements  made  by  a  person  under  oath  before  a  coroner's  inquest, 
but  voluntarily,  and  before  he  was  himself  accused,  are  admissible 
against  him   on  his  subsequent  trial  for  murder.     The  People  a. 
Hendrickson,  1  Parker's  Cr.  .7?.,  406. 

5.  It  seems  that  on  a  trial  for  incest,  the  declaration  of  the  accused  are 
competent  evidence  on  the  question  of  consanguinity.     The  People 
a.  Harriden,  1  Parker's  Cr.  R.,  344. 

6.  What  preliminary  evidence  is  necessary  to  introduce  dying  declara- 
tions.    People  a  Knickerbocker,  1  Parker's  Cr.  R.,  302. 

7.  Dying  declarations  admitted  under  certain  circumstances  ;  it  appear- 
ing that  the  declarant  expected  at  the  time  to  die,  although   her 
physicians  had  not  expressed  to  her  any  such  expectation.     The  Peo- 
ple a.  Grunzig,  1  Parker's  Cr.  R.,  299.     Compare  also  The  People 
a.  Knickerbocker,  I  Parker's  Cr.  R.,  302. 

8.  Circumstantial  evidence,  and  the  nature  and  degrees  of  presumptions, 
considered.     People  a.  Videto,  1  Parker's  Cr.  R.,  603. 

9.  There  is  a  presumption  that  every  person  is  sane  ;  and  the  defence 
of  insanity  must  be  supported  by  affirmative  proof.     People  a.  Rob- 
inson, 1  Parker's  Cr.  R.,  649.    See  also  Lake  a.  The  People,  Ib.,  495. 

EVIDENCE,  tit.  Presumptions,  4;  tit.  Admissions,  2. 
IV.     Trial. 

1.  The  proper  practice  in  respect  to  the  challenging  of  jurors,  defined. 
Carnal  a.  The  People,  1  Parker's  Cr.  R.,  272 ;  People  a.  Knicker- 
bocker, 1  Ib.,  302  ;  People  a.  Henries,  1  Ib.,  579  ;  People  a.  Thayer, 
1  Ib.,  595;  Colt  a.  The  People,  1  Ib.,  611. 

2.  And  in  respect  to  the  trial  of  challenges  for  favor.     Smith  a.  Floyd, 
18  Barb.,  522 ;  Carnal  a.  The  People,  1  Parker's  Cr.  R.,  272. 

3.  Where  a  large  number  of  additional  jurors  were  summoned  in  the 
initiatory  proceedings  of  a  murder  trial,  the  refusal  of  the  court  to 
allow  delay  of  two  or  three  days,  to  enable  the  prisoner's  counsel  to 
examine  the  new  list  of  additional  jurors  was  held  a  matter  in  the  dis- 


NEW- YORK.  513 


January — July,  1855. 


cretion  of  the  court,  and  not  the  subject  of  an  exception.     Colt  a. 
The  People,  1  Parker's  Or.  R.,  611. 

4.  In  criminal  cases  the  jury  are  judges  of  the  law  as  well  as  of  the 
fact.     Per.  WAL  WORTH,  J.,  in  People  a.  Thayers,  1  Parker's  Or.  R., 
595,  and  in  People  a.  Videto,  1  lb.,  603. 

5.  It  is  the  better  opinion  that  the  jury  are  no  more  judges  of  the 
law  in  criminal  cases  than  in  civil.    Per  HAND,  J.,  in  Safford  a.  The 
People,  1  Parker's  Or.  R.,  474. 

6.  Except  in  a  criminal  prosecution  for  libel.     Per  PARKER,  J.,  hi 
People  a.  Finnegan,  1  Parker's  Cr.  R.,  147. 

7.  The  practice  upon  the  separate  trial  of  persons  jointly  indicted  for 
felony.   The  People  a.  Mclntyre,  1  Parker's  Cr.  R.,  371 ;  The  Peo- 
ple a.  Stockham,  Ib.,  424. 

8.  Under  the  Revised  Statutes,  exceptions  may  be  taken  on  a  criminal 
trial  in  the  same  manner  as  in  civil  cases.     Safford  a.  The  People, 
1  Parker's  Cr.  R.,  474. 

V.    Writ  of  Error. 

1.  The  appeal  to  the  Supreme  Court  and  Court  of  Appeals,  from  a 
conviction  in  the  courts  of  Oyer  and  Terminer  of  the  State,  or  the 
General  Sessions  of  the  City  of  New  York,  for  a  capital  offence,  or 
for  one  punishable  as  a  minimum  punishment,  by  imprisonment  for 
life,  by  a  writ  of  error  with  a  stay  of  proceedings,  is  a  matter  of  right. 
The  appellate  court  may  order  a  new  trial,  although  no  exception 
was  taken  below.     Laws  of  1855,  613,  Ch.  337. 

2.  The  distinction  between  a  bill  of  exceptions  and  a  motion  in  arrest 
of  judgment,  or  writ  of  error,  in  criminal  practice.     The  People  or. 
Stockham,  1  Parker's  Or.  R.,  424. 

3.  When  a  court  of  Oyer  and  Terminer  will  grant  a  writ  of  error  and 
stay  of  proceedings,  upon  a  capital  conviction.     The  People  a  Ilen- 
drickson,  1  Parker's  Or.  R.,  396 ;  and  see  Colt  a.  The  People,  /&., 
611,  and  Laws  of  1855,  613,  Oh.  337. 

4.  Upon  a  final  judgment  in  the  Oyer  and  Terminer,  a  writ  of  error  is 
a  writ  of  right,  and  brings  before  the  court  above  the  bill  of  excep- 
tions, with  a  transcript  of  the  record.     Safford  a.  The  People,  1 
Parker's  Cr.  R.,  474;  see  Laws  0/1855,  613.,  Oh.  337. 

5.  The  personal  appearance  of  the  accused  on  the  argument  and  at  the 
decision,  upon  a  writ  of  error  brought  to  reverse  a  judgment  in  a 
capital  case,  is  not  necessary  to  give  the  appellate  court  jurisdiction. 
The  People  a.  Clark,  1  Parker's  Cr.  R.,  360. 

6.  The  decision  of  the  jury  upon  a  matter  of  fact  cannot  be  reviewed 
on  a  writ  of  error.     Colt  a.  The  People,  1  Parker's  Or.  R.,  611. 

33  Tit.  Indictment,  10  ;  APPEAL,  8. 


514  ABBOTTS'  PRACTICE  DIGEST. 


Reports  and  Statutes. 


VI.  New  Trial 

1.  Affidavits  of  jurors  inadmissible,  on  a  motion  for  a  new  trial  on  the 
ground  of  misconduct  in  the  jury.     The  People  a.  Carnal,  1  Par- 
ker's Or.  R.,  256. 

2.  What  irregularities  in  the  conduct  of  the  jury  are  grounds  for  a  new 
trial.     The  People  a.  Carnal,  1  Parker's  Cr.  R.,  256. 

VII.  Judgment. 

1.  Requisites  of  the  record  in  cases  of  summary  conviction.     The  Peo- 
ple a.  Phillips,    1    Parker's   Cr.  £.,  95.     And  see  Morris  a.  The 
People,  Ib.,  441. 

2.  The  entry  of  judgment  of  conviction  for  a  statutory  offence  must  state 
as  required  by  2  Revised   Statutes,  783,  section  5,  the  offence  for 
which  the  conviction  is  had.     And  this  provision  is  not  complied 
with,  by  simply  stating  that  the  prisoner  is  convicted  of  a  misde- 
meanor.   But  the  particular  offence  must  be  designated.    Cavanagh's 
Case,  10  How.  Pr.  R.  27 ;  &  C.,  1  Parker's  Cr.  R.,  588. 

3..  In  what  cases  a  criminal  punishable  corporeally  must  be  present 
when  judgment  is  rendered  against  him.  People  a.  Clark,  1  Parker's 
Cr,  R.,  360. 

4.  Entry  of  judgment  in  case  of  felony  is  irregular,  unless  it  appear 
upon   the   record   that   the   prisoner   was    present,    and   the    court 
demanded  what  he  had  to  say  why  judgment  should  not  be  pronoun- 
ced against  him.      Query.  Whether  the  court  have  power  to  amend 
the  record  in  such  case.  Safford  a.  The  People,  1  Parker's  Cr.  R.,  474. 

5.  The  power  of  the  court  to  expunge  its  sentence  passed  upon  a  per- 
son convicted  of  crime,  for  irregularity,  and  to  pass  sentence  anew — 
asserted.     Miller  a.  Finkle,  1  Parker's  Cr.  R.,  374. 

6.  The  record  of  a  commitment  for  vagrancy  by  a  police  justice  of  the 
city  of  New  York  must  be  filed  in  the  office  of  the  clerk  of  General 
Sessions. 

Form  of  the  record. 

The  vagrant  can  be  discharged  before  the  expiration  of  the  term 
only  by  habeas  corpus,  .or  by  order  of  two  governors  of  the  alms- 
house.  Laws  0/1855,  451,  Ch.  268. 

HABEAS  CORPUS,  3,  4 ;  SESSIONS,  2. 

VIII.  Pardon. 

1.  Where  a  criminal  has  been  conditionally  pardoned,  he  may,  upon 
breach  of  the  condition,  be  remanded  to  prison,  and  the  execu- 
tion of  the  original  sentence  may  be  enforced,  by  the  court  in  which 
be  was  convicted,  or  by  any  court  ,of  superior  criminal  jurisdiction. 
The  People  a.  Potter,  1  Parker's  Cr.  R.,  47. 
Tit.  Evidence,  2. 


NEW-YORK.  515 


January — July,  1855. 


DAMAGES. 

1.  Distinction  between  liquidated  damages  and  penalty.     Cotheal  a. 
Talmadge,  1  E.  D.  Smith's  C.  P.  R.,  573. 

2.  When  a  contract  is  such  that  the  damages,  in  case  of  a  violation  of 
it,  will  be  uncertain  in  their  nature  and  amount,  and  the  parties  have 
stipulated  that,  in  the  event  of  a  breach,  a  certain  sum  shall  be  paid 
by  the  party  in  default  as  liquidated  damages,  they  will  be  regarded 
as  having  so  intended,  and  that  sum  will  be  treated  as  the  measure 
of  damages.     Mundy  a.  Culver,  18  Barb.,  336. 

3.  The  rule  of  damages  in  an  action  for  the  breach  of  a  special  con- 
tract for  the  delivery  of  merchandize  on  a  specified  day.     Dana  a. 
Fiedler,  1  E.  D.  Smith's  C.  P.  R.,  463. 

4.  Of  the  rule  of  damages  in  an  action  brought  by  a  parent  for  the  loss 
of  service  of  his  child,  in  consequence  of  an  injury  received  through 
negligence  of  defendant's  servant.     Gilligan  a.  The  New  York   & 
Harlem   Rail   Road   Company,  1   E.  D.  Smith's   C.  P.  R.,  453. 

5.  In  a  suit  for  libel,  the  damages  should  be  a  full  compensation  for  the 
injury,  and  nothing  more,  unless  the  jury  be  satisfied  that  the  defend- 
ant was  influenced  by  actual  malice,  or  deliberate  intention  to  injure 
plaintiffs  ;  but  if  the  jury  were  satisfied  of  such  actual  malice,  vindic- 
tive damages  may  further  be  given.    Taylor  a.  Church,  4  Seld.,  452. 

6.  In  an  action  for  libel  where  actual  malice  has  been  proved,  the  jury 
are   at  liberty  to  give  vindictive  damages.     Fry  a  Bennett,  Ante 
289 ;  Taylor  a.  Church,  1  E.  D.  Smith's  C.  P.  R.,  279. 

7.  Vindictive  damages  may  also  be  given  in  an  action  for  the  seduction 
of  plaintiff 's  daughter.     Knight  «.  Wilcox,  16  Bjrb.,  212. 

EVIDENCE,  tit.  Opinions  and  Belief  of  Witnesses,  3  ;  tit.  In  Certain 
Actions,  7,  8 ;  JOINDER  OF  ACTIONS,  3,  4 ;  SATISFACTION  OF  PART 
OF  PLAINTIFF'S  CLAIM,  5  ;  TRIAL,  tit.  Verdict,  1 ;  tit.  New  Trial,  2. 

DECREE. 
JUDGMENT  ;  MORTGAGE,  2,  4. 

DEFAMATION. 

ANSWER,  22,  29,  30,  31,  32,  33 ;  COMPLAINT,  29 ;  DAMAGES,  5,  6. 
EVIDENCE,  tit.  Hearsay;  tit.  In  Certain  Actions,  9,  10.  PAR- 
TIES, 18. 

DEMURRER. 

1.  Defendant  properly  joined  cannot  demur  to  the  complaint  for  the 
misjoinder  of  another  defendant.     Pinckney  a.  Wallace,  Ante,  82. 

2.  An  answer  which  does  not  contain  new  matter  constituting  a  coun- 


516  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

ter  claim,  is  not  demurrable.  Perking  a.  Farnham,  10  How.  Pr.  R., 
120  ;  Herr  a.  Bamberg,  lb.,  128  ;  Heaton  a.  Wright,  Ib.,  79  ;  Con- 
tra, Kneedler  a.  Sternbergh,  Ib.,  57. 

3.  But  by  the  amendment  of  3d  March,  1855,  plaintiff  may  demur  to 
the  answer  for  insufficiency,  stating  in  his  demurrer  the  grounds 
thereof,  and  he  may  demur  to  one  or  more  of  several  defences  or 
counter  claims  set  up  in  the  answer,  and  reply  to  the  residue.   Laws 
of  1855,  54,  ch.  44. 

4.  When  the  want  of  a  statement  of  facts  sufficient  to  constitute  a 
cause  of  action,  is  the  only  cause  of  demurrer  to  a  complaint,  it  is 
a  sufficient  assignment  of  the  grounds  of  the  demurrer  to  state  sun- 
ply  that  the  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.     Section  145  only  requires  that  the  demurrer  shall 
specify  distinctly  one  or  more  of  the  six  causes  of  the  demurrer  enu- 
merated in  section  144.     In  the  Superior  Court  this  may  be  consid- 
ered as  settled.     Paine  a.  Smith,  2  Duer,  298. 

5.  Where  a  demurrer  to  an  answer,  containing  two  defences,  one  of 
which  was  good,  and  the  other  bad,  purported  to  be  to  the  whole  an- 
swer, but  it  was   evident  from  the  assignment  ot  grounds  of  the 
demurrer,  that  it  had  reference  to  the  second  defence  only — Held, 
that  it  was  not  error,  under  the  liberal  mode  of  construing  pleadings 
enjoined  by  the  Code,  to  construe  it  as  being  substantially  limited  to 
the  badly  pleaded  defence,  and  to  render  judgment  allowing  it,  ac- 
cordingly.    Matthews  a.  Beach,  4  Seld.,  173. 

6.  Where  a  demurrer  to  a  complaint  founded  upon  the  objection  that 
the  complaint  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action,,  does  itself  admit  facts   sufficient  to  constitute  the   cause  of 
action,  the  admission  is  sufficient  to  sustain  the  complaint,  upon  the 
argument  of   the   demurrer.     Richards   a.  Edick,   17  Barb.,   2  GO. 
Compare  Ayres  a.  Covill,  18  Barb.,  260. 

7.  A  demurrer  to  a  complaint,  based  upon  the  sixth  sub-division  of 
section  144  of  the  Code,  can  only  be  sustained  where  the  complaint 
presents  defects  so   substantial  in  their  nature  and  so  fatal  in  their 
character  as  to  authorize  the  court  to  say  that,  taking  all  the  facts  to 
be  admitted,  they  furnish  no  cause  of  action  whatever.    (3  How.  Pr. 
R.,  280).    Defects  merely  formal,  and  which  under  the  former  prac- 
tice were  the  appropriate  subjects  of  a  special  demurrer,  cannot  now 
be  corrected  by  demurrer.     Richards  a.  Edick,  17  Barb.,  260. 

8.  On  a  demurrer  that  causes  of  action  are  improperly  joined,  the  de- 
fendant cannot  avail  himself  of  the  objection  that  the  causes  of  action 
are  not  separately  stated.     Moore  a.  Smith,   10  How.  Pr.  R.,  361. 


NEW-YOKE.  51T 


January — July,    1855. 


APPEAL,  2,  3,  17  ;  COMPLAINT,  7 ;  CRIMINAL  LAW,  tit.  Indictment, 
10;  CORPORATION,  12;  COSTS,  18,  19;  JUSTICES'  COURT,  tit. 
Pleadings,  8,  9,  10 ;  PLEADING. 

DEPOSITION  DE  BENE  ESSE. 

1.  It  seems  that  the  statement  regulating  the  taking  of  depositions  de 
bene  esse,  and  requiring  the  officer  to  insert  therein  every  answer  of 
the  witness  examined  which  either  party  shall  require  to  be  inclu- 
ded, is  complied  with  by  confining  the  direction  to  answers,  leaving 
the  officer  to  exclude  questions  in  his  opinion  illegal  and  irrelevant. 
And  a  party  is  not  empowered  by  this  statute  to  go  into  a  course  of 
irrelevant  inquiry,  and  have  answers  thereto  included  in  the  deposi- 
tion.    Gibson  a.  Pearsall,  1  E.  D.  Smith's  C.  P.  R.,  90. 

2.  What  is  satisfactory  proof  of  the  inability  of  a  witness  to  attend  a 
trial  for  the  purpose  of  rendering  his  deposition  taken  de  bene  esse, 
admissible.     Fry  a.  Bennett,  Ante,  289. 

3.  Testimony  taken  conditionally  is  admissible  upon  the  trial  notwith- 
standing that  one  of  the  original  plaintiffs  has  died,  and  the  suit  is 
continued,  (under  section  121  of  the  Code),  by  the  survivor; — and 
notwithstanding  the  witness  may  have  returned  to  the  State  since  his 
examination,  if  he  is  not  within  the   State  at  the  time  of  the  trial. 
Markoe  a.  Aldrich,  Ante,  55. 

TRIAL,  tit.,  New  Trial,  7. 

DEPOSITION  ON  COMMISSION. 

1.  In  an  action  upon  a  joint  contract  against  three  defendants  by  an 
assignee  of  the  demand,  two  of  the  defendants  only  answering,  the 
two  who  answered  were  allowed  a  commission  to  take  the  evidence 
of  their  co-defendant  who  was   out  of  the    State.     When  a   party 
has   a   material   witness  not   within   the  reach  of  subprena,   he  is 
entitled  to  a  commission,   even  where  the    witness   is  a  party   to 
the  action,  unless  it  be  made  to  appear  that  his  examination  cannot 
be  received  upon  the  trial.     Shufelt  a.  Power,  10  How.  Pr.  R.,  286. 

2.  A  party  is  not  called  on  to  risk  loss  of  original  papers  by  annexing 
them  to  a  commission  issued  to  take  testimony  respecting  them ;  and 
where,  in  the  examination  of  witnesses  by  commission  as  to  an  origi- 
nal paper,  a  copy  is  annexed  to  the  interrogatories,  that  they  may 
testify  intelligently  regarding  it,  the  evidence  is  not  objectionable  as 
secondary.     Commercial  Bank  of  Penn.  a.  Union    Bank  of   New 
York,  1  Kern.,  203. . 

3.  When  the  witness  in  a  deposition  testified  to  a  note  referring  to  it 
by  amount,  date,  &c.,  and  as  described  in  the  interrogatories,  and  upon 


518  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

which  he  had  written  his  name  ;  and  the  return  of  the  commissioners 
stated  that  "  such  testimony  was  subscribed  by  the  witnesses,  who 
also  in  the  presence  of  the  commissioners  signed  their  names  on  the 
back  of  the  note  attached  to  their  testimony,  which  notes  were  pro- 
duced and  shown  to  them ; — Held,  that  this  was  all  that  was  neces- 
sary to  identify  the  note,  and  that  it  was  admissible.  Brumskill  a. 
James,  I  Kern.,  294. 

4.  A  direction  indorsed  upon  a  commission  that  the  commission  when 
executed  is  to  be  deposited  in  the  post  office,  directed,  &c.,  and  a  cer- 
tificate thereof  indorsed  on  the  wrapper  by  the  commissioners,  does 
not  require  a  certificate  that  it  was  deposited  in  the  post-office.     Ib. 

5.  Where  a  commission  to  examine  witnesses  abroad  is  returned  by  an 
agent,  his  affidavit,  as  prescribed  by  statute,  that  he  received  it  from 
the  hands  of  the  commissioners,  and  that  it  has  not  been  opened  or 
altered  since  he  received  it,  is  indispensable,  unless  waived  by  con- 
sent.    Dwindle  a.  Rowland,  Ante,  87. 

6.  A  commission  returned  by  express,  and  unaccompanied  by  such 
affidavit,  was  excluded  at  circuit,  although  so  returned  pursuant  to 
the  order  awarding  the  commission.     Ib. 

7.  A  deposition  taken  upon  commission  should  not  be  rejected  on  the 
trial  for  the  reason  that  the  pleadings  have  been  amended  since  it 
was  taken,  if  the  true  issue  between  the  parties  remains  substantially 
unaltered.     If  in  such  case  either  party  wishes  to  examine  the  wit- 
ness further,  a  motion  should  be  made  for  a  further  commission.     If 
the  testimony  is  inapplicable  to  the  new  issue,  a  motion  to  suppress  the 
deposition  is  proper.    Vincent  a.  Concklin,  1  E.  D.  Smith's  C.  P.  R., 
203. 

8.  That  the  attorney  for  a  party  conversed  with  the  witnesses  in  a  de- 
position, and  at  their  request  wrote  down  for  them  the  substance  of 
the  facts  in  answer  to  the  interrogatories,  goes  to  the  weight  of  the 
testimony,  but  is  no  reason  for  suppressing  the  deposition,  in  the 
absence   of  any  suggestion   of  positive   misstatement   or   coloring. 
Commercial  Bank  of  Penn.  a.  Union  Bank  of  N.  Y.,  1  Kern.,  203. 

9.  If  a  party  is  surprised  by  pertinent  ansAvers  to  a  proper  interroga- 
tory in  a  deposition  returned,  and  desires  to  controvert  or  explain  the 
facts  stated,  his  remedy  is  by  an  application  for  opportunity  to  do  so, 
and  not  by  objection  to  the  admission  of  the  deposition.     Ib. 

10.  Objections  to  particular  parts' of  a  deposition  are  no  ground  for  ex- 
cluding the  whole ;  the  parts  inadmissible  should  be  excluded,  but 
the  rest,  although  little  should  remain  which 'could  affect  the  merits, 
should  be  admitted.     Ib. 

EVIDENCE,  tit.  Deeds  and  Wills,  4. 


NEW-YORK.  519 


January — July,  1855. 


DISCONTINUANCE. 

1.  Under  the  former  practice  the  plaintiff  had  an  absolute  right  to  dis- 
continue on  payment  of  costs  at  any  time  before  judgment  or  decree, 
or  the  submission  of  the  cause  to  the  jury,  and  this  right  has  not 
been  abrogated  by  the  Code.     Seaboard  &  Roanoake  Railroad  Com- 
pany a.  Ward,  Ante,  46. 

2.  After  a  counter-claim  has  been  set  up  and  is  admitted  of  record, 
plaintiff  will  not  be  allowed  to  discontinue  as  a  matter  of  course ;  but 
special  grounds  must  be  shown,  in  support  of  an  application  for  leave 
to  discontinue.     Cockle  a.  Underwood,  Ante,  1. 

8.  Otherwise  before  the  counter-claim  stands  admitted.     Seaboard  & 
Roanoake  Railroad  Company  a.  Ward,  Ante,  46. 

4.  The  plaintiff  on  discontinuing  an  action  should  enter  an  order  of 
discontinuance.     And  in  an  action  on  a  promissory  note  where  de- 
fendants plead  pendency  of  a  former  action  on  the  same  note,  the 
plaintiff's  reply  alleging  that  the  former  suit  was  discontinued  by 
service  of  a  notice  in  writing  on  defendant,  was — Held,  bad  for  not 
averring  that  an  order  of  discontinuance  was  entered.     Averill  a. 
Patterson,  10  How.  Pr.  R.,  85. 

5.  A  rule  of  discontinuance  without  payment  of  costs  is  good,  if  entered 
before  defendant  appears.     Averill  a.  Patterson,  10  How.Pr.  R.,  85. 

6.  In  an  action  on  a  joint  contract  where  one  defendant  pleads  infancy, 
it  seems  that  the  plaintiff  may  discontinue  as  to  him,  without  costs,  on 
application  to  the  court.    But  if  he  goes  to  trial  and  the  plea  is  estab- 
lished, such  defendant  is  entitled  to  costs,  although  the  plaintiff  reco- 
ver of  the  other  defendant.     Cuyler  a.  Coats,  10  How.  Pr.  R.,  141. 

7.  The  mere  fact  that  another  action  has  been  commenced  in  another 
State  after  suit  brought  here  for  the  same  cause  of  action,  and  that 
it  is  still  pending,  is  no  reason  for  ordering  discontinuance  of  the  suit 
in  this  State.     The  Republic  of  Mexico  o.  Arrangois,  Ante,  437. 
Compare  the  People  a.  The  Sheriff,  &c.,  1  Parkers  Cr.  R.,  659. 

DISCOVERY. 

The  New  York  Superior  Court  has  the  same  power  to  compel  a  dis- 
covery of  books,  &c.,  by  a  party,  as  is  conferred  on  the  Supreme 
Court  by  2  Rev.  Stats.,  199.  Where  defendant  refused  to  make 
the  discovery  required,  and  his  answer  was  thereupon  stricken  out 
and  judgment  rendered  against  him, — the  judgment  was  affirmed  in 
the  Court  of  Appeals.  Gould  a.  M'Carty,  1  Kern.,  575. 
ANSWER,  15 ;  COMPLAINT,  28. 


520  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

DISTRICT  ATTORNEY. 

The  District  Attorney  has  concurrent  power  with  the  Attorney  General 
to  move  to  set  aside  a  stay  of  proceedings  and  quash  a  writ  of  error 
in  a  capital  case.  Carnal  a.  The  People,  1  Parker's  Cr.,  R.  262. 

DIVORCE. 
COSTS,  10 ;  PAKTIES,  19  ;  REFERENCE,  3. 

EJECTMENT. 

Section  31,  in  the  title  of  Ejectment  in  the  Revised  Statutes  (2  Rev. 
Stats.  308),  which  declares  that  if  the  title  of  plaintiff  expires  after  the 
commencement  of  the  suit,  but  before  the  trial,  the  verdict  shall  be 
returned  according  to  the  fact,  and  judgment  entered  for  plaintiff  for 
his  damages,  by  reason  of  the  withholding  of  the  possession  only,  is 
one  of  those  general  provisions  which  apply  to  actions  under  the  Code 
(§455).  It  applies  to  all  cases  where  plaintiff's  title  from  any  cause 
ceases  to  exist  before  trial ;  and  is  not  confined  to  cases  in  which  the 
title  expires  by  its  own  limitation.  And  it  is  not  necessary  to  file  a 
supplemental  answer  to  enable  defendant  to  avail  himself  of  this  pro- 
vision. Lang  er.  Wilbraham,  2  Duer,  171. 

EVIDENCE. 

[CRIMINAL  LAW,  tit.  Evidence;  DEPOSITION  DE  BENE  ESSE;  DEPO- 
SITION ON  COMMISSION  ;  EXAMINATION  OF  ASSIGNOR  ;  EXAMINA- 
TION OF  PARTIES  ;  LIMITATION  OF  ACTIONS,  2 ;  TRIAL,  tit.  Exam- 
ination of  Witness,  8,  9,  10 ;  WITNESS.] 

I.    What  Mutters  will  be  Judicially  Noticed. 

1.  Although  a  fact  not  judicially  cognizable,  is  known  to  the  members 
of  the  court  individually,  this  does  not  dispense  with  the  necessity  of 
proof  upon  the  record.     Wheeler  a  Webster,  1  E.  D.  Smith's  C.  P. 
R.,  1.     Compare  also  Belt's  case,  1  Parker's  Cr.  ./?.,  169. 
II.  Burden  of  Proof  . 

1.  An  agreement  made  by  a  debtor  with  his  creditors  to  give  them  his 
notes,  endorsed,  for  fifty  per  cent,  of  his  debts,  and  their  agreement 
to  receive  them  in  full  discharge  of  the  whole,  is  a  good  accord  and 
satisfaction.     But  where  the  proof  shows  that  such  notes  were  to  be 
in  discharge  only  it  paid  at  maturity,  the  burden  of  proof  is  upon  the 
defendant,  in  pleading  such  accord  and  satisfaction,  to  show  that  they 
were  so  paid.     Dolsen  a.  Arnold,  10  How.  Pr.  R.,  528. 

2.  Where  the  complaint  charges,  that  a  party  has  broken  an  agree- 
ment, and  the  answer  denies  that  the  party  has  broken  the  aoree- 


NEW-YORK.  521 


January — July,  1855. 


ment  "  further  or  otherwise  than  as  hereafter  stated ;"  and  acts  of  the 
plaintiff  are  afterwards  averred  in  the  answer,  which  amount  to  a 
rescission  of  the  contract,  or  to  a  release  from  its  performance ;  the 
burden  of  proof  is  on  the  defendant  to  show  such  rescission  or  release, 
and  in  default  of  his  so  doing,  the  plaintiff  is  not  required  at  the  trial 
to  prove  the  breach.  Cotheal  a.  Talmadge,  1  E.  D.  Smith's  G.  P. 
R.,  573. 

3.  In  a  suit  for  the  statute  penalty  for  selling  spirituous  liquors  with- 
out a  license,  the  burden  of  proof  is  on  the  defendant,  to  show  that 
he  had  a  license.     The  Mayor,  &c.  of  N.  Y.  a.  Mason,  Ante,  344. 

4.  To  establish  usury  in  a  written  security,  it  is  riot  sufficient  to  show 
that  a  part  of  the  consideration  money  was  intentionally  withheld  at 
the  time  of  the  execution ;  for  the  corrupt  and  usurious  nature  of 
the  intent  will  not  be  presumed,  but  must  be  directly  proved.    Booth 
a.  Swezey,  4  Seld.,  276. 

III.  Presumptions. 

1.  Where  a  plaintiff,  who  claimed  to  recover  for  services  rendered, 
gives  his  promissory  note  to  the  defendant  long  after  the  rendering 
of  the  services,  and  pays  it  when  it  falls  due,  it  creates  a  presump- 
tion that  no  previous  indebtedness  existed  on  the  part  of  the  defend- 
ant to  the  plaintiff;  but  this  presumption  may  be  rebutted — e.  g.  by 
showing  that  the  note  was  given  for  a  temporary  loan.     Duguid  a 
Ogilvie,  Ante,  145. 

2.  In  an  action  for  enticing  away  a  man's  wife,  actual  proof  of  the  mar- 
riage is  not  necessary.     Cohabitation,  reputation,  and  the  admission 
of  the  parties,  is  sufficient.     Scherpf  a.  Szadeczky,  Ante,  366. 

3.  And  certainly  the  admission  of  the  defendant,  that  the  plaintiff  and 
his  alleged  wife  were  married,  is  sufficient,  without  formal  proof  of 
marriage.    Ib. 

4.  But  on  an  indictment  for  bigamy,  proof  of  actual  marriage  is  neces- 
sary.    Gahagan  a.  The  People,  1  Parker's  Cr.  R.,  378. 

LUNATICS  AND  HABITUAL  DRUNKARDS,  2. 
IV.  Judgments  and  Judicial  Proceedings. 

1.  The  proper  mode  of  proving  public  records  of  one  State  in  the 
courts  of  another,  defined.     Markoe  a.  Aldrich,  Ante,  55. 

2.  The  admissibility  and  effect  of  a  judgment  recovered  against  a  sheriff 
for  omissions  of  duty  by  his  deputy,  when  offered  in  evidence  in 
behalf  of  the  sheriff,  in  an  action  brought  by  him  against  the  deputy 
and  his  sureties,  to  recover  the  amount.     Thomas  a.  Hubbell,  18 
Barb.  9. 

3.  It  seems  that  a  judgment  vacating  a  warrant  of  arrest  granted  by  a 


522  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

county  judge,  under  the  non-imprisonment  act  of  1831,  with  all  pro- 
ceedings under  it,  for  want  of  jurisdiction  in  the  officer  granting  it,  is 
conclusive  upon  the  question  of  jurisdiction,  as  between  the  parties 
to  those  proceedings,  in  a  subsequent  action  for  false  imprisonment. 
Vredenburgh  a.  Hendricks,  17  Barb.,  179.- 

4.  When  the  defendant  in  a  trespass  suit  raised  an  issue  of  title  in 
respect  to  the  portion  of  the  close  in  which  the  technical  trespass 
confessed  was  committed,  and  there  was  verdict  and  judgment  for 
the  plaintiff' — Held,  that  the  record  of  judgment  was  not  evidence 
that  the  title  to  the  entire  close  was  adjudged  to  be  in  the  plaintiff. 
The  party  seeking  to  make  the  record  available  as  an  estoppel,  must 
show  aliunde  the  portion,  the  title  of  which  was  in  question  and 
passed  upon.     Dunckel  a.  Wiles,  1  Kern.,  420. 

5.  It  is  purely  a  matter  of  discretion  with  the  judge  whether  he  will  allow 
the  pleadings  to  be  read  to  the  jury  upon  the  trial.     The  pleadings 
are  for  the  consideration  of  the  court,  and  when  evidence  to  establish 
the  facts  alleged  in  them  is  offered,  it  becomes  necessary  for  the  court 
to  understand  what  issues  are  raised  and  which  of  them  are  properly 
triable.  And  if  necessary  to  enable  the  court  to  understand  the  issues 
raised,  counsel  may  be  required  to  read  the  pleadings  or  state  the 
substance  of  them.     But  the  facts  stated  in  them,  (except  so  far  as 
admitted),  cannot  be  considered  by  the  jury  until  proved,  and  where 
the  pleadings  contain  numerous  irrelevant  allegations,  raising  imma- 
terial issues  improper  to  be  placed  before  the  jury  for  their  conside- 
ration, it  is  very  proper  to  prohibit  them  from  being  read.    Willis  a. 
Forrest,  2  Duer,  310. 

6.  An  admission  contained  in  a  special  plea  or  answer  upon  which  issue 
is  taken,  cannot  be  used  on  the  trial  as  a  general  admission  of  a  ma- 
terial fact  alleged  in  the  complaint,  when  the  whole  complaint  has 
been  denied  by  a  prior  answer.     The  Troy  &  Rutland  R.  R.  Co.  a. 
Kerr,  17  £«rb.,  581.     Compare  Ayres  a.  Covill,  18  Barb.  260. 

7.  After  a  demurrer  to  one  of  several  defences  contained  in  an  answer 
is  allowed,  such  defence  is  in  effect  struck  from  the  record,  and  can- 
not be  regarded  on  the  trial  as  an  admission  of  facts  by  the  defendant. 
Matthews  a.  Beach,  4  Seld.,  173. 

8.  Copies  of  records  in  the  office  of  the  clerk  of  a  board  of  supervisors, 
certified  by  such  clerk  with  the  seal  of  the  office,  shall  be  evidence  like 
the  originals.     Laws  of  1855,  383,   Oh.  249. 

AFFIDAVIT,  2 ;  JUDGMENT,  14,  22 ;  TRIAL  tit.  New  Trial,  6,  7. 

V.  Public  Documents. 

1.  Mode  of  proving  ordinances  of  the  corporation  of  the  City  of  New 
York.     Logue  a.  GilUck,  1  E.  D.  Smith's  G.  P.  ./?..  398. 


NEW-YORK.  523 


January — July,   1855. 


2.  The  dishonor  of  a  promissory  note,  payable  at  a  place  within  a 
foreign  State,  cannot  be  proved  by  the  certificate  of  a  notary.  It  is 
only  in  relation  to  foreign  bills  of  exchange  that  the  protest  of  a 
foreign  notary  can  be  admitted  in  evidence,  and  a  note  is  not  ren- 
dered a  bill  of  exchange  by  being  made  payable  in  a  foreign  place. 
The  provisions  of  our  own  statute  apply  only  to  protests  made  within 
this  State,  and  by  our  own  notaries.  And  even  a  statute  of  the 
State  within  which  the  note  is  made  payable,  declaring  the  notary's 
certificate  of  protest  legal  evidence,  does  not  justify  its  admission  in 
the  courts  of  this  State.  There  is  no  case  in  which  a  foreign  law 
can  be  permitted  to  control  and  supersede  our  own  rules  of  evidence. 
Kirtland  a.  Wanzer,  2  Duer,  278. 

VI.  Private  Writings. 

1.  The  rules  which  govern  the  admission  of  plaintiff's  entries  in  his 
own  private  books  of  account  as  evidence  in  his  favor.     Foster  a. 
Coleman,  1  E.  D.  Smith,  C.  P.  R.,  85. 

2.  In  an  action  upon  a  promissory  note  against  the  indorser,  a  notary's 
Clerk  testified — that  he  had  himself  presented  the  note  for  payment, 
and  mailed  a  notice  of  non-payment  to  the  defendant — that  he  knew 
this  from  an  examination  of  his  books  and  papers — that  he  was  in 
the  daily  habit  of  protesting  notes — that  it  was  his  usual  practice  to 
make  the  entries  in  the  memorandum  book  the  same  day  that  he 
delivered  the  notices  of  non-payment — that  he  had  no  recollection  of 
making  the  entries  in  this  case,  but  knew  they  would  not  have  been 
made  if  he  had  not  done  the  acts — and  he  produced  the  memorandum 
book,  the  entries  from  which  were  read  to  the  jury.     Held  sufficient 
evidence  of  notice  of  protest.     Cole  a.  Jessup,  10  How.  Pr.  JR.,  515. 

VII.  Deeds  and  Witts. 

1.  As  to  the  evidence  necessary  to  prove  sealed  instruments.     Merritt 
a.  Cornell,  1  E.  D.  Smith's  0.  P.  JR.,  335. 

2.  What  is  sufficient  proof  of  the  due  execution  of  a  will  ?     Cheeney  a. 
Arnold,  18  Barb.  434 ;  Mead  a.  Mead,  lb.,  578 ;  Waterman  a.  Whit- 
ney, 1  Kern.,  157  ;  Lewis  a.  Lewis,  lb.,  220. 

3.  The  rule  that  the  execution  of  an  instrument  must  be  proved  by  the 
subscribing  witness,  if  there  be  one  living  competent  to  testify,  and 
within  the  jurisdiction  of  the  court,  is  inflexible.     The  adverse  party 
has  an  undeniable  right  to  require  him  who  offers  the  instrument  in 
evidence  to  call  the  person  who  was  chosen  to  attest  the  fact  of  exe- 
cution, that  he  may  by  cross  examination  elicit  all  the  attending  cir- 
cumstances.    The  oath  of  the  party  who  executed  the  instrument 
cannot  be  substituted.     (6  Hill,  303 ;  2  Wend.  575 ;  2   Greenl.  Ev. 
§  589.)     Story  a.  Lovett,  1  E.  D.  Smith's  C.  P.  R.,  153. 


524  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

4.  Where  the  execution  of  a  witnessed  contract  had  been  proved  with- 
out objection  by  secondary  evidence,  hi  taking  evidence  conditionally, 
it  cannot  be  objected  to  on  that  ground  at  the  trial.  Ward  a.  Whitney, 
4  Seld.  442. 

VIIL  Estoppel 

1.  What  will  constitute  an  estoppel  in  pais  ?     Carpenter  a.  Stillwell, 
1  Kern.,  61. 

2.  Recitals  in  a  deed  are  evidence  of  the  facts  recited  as  between  the 
parties  to  the  deed  and  those  deriving  title  under  them.     Those  who 
claim   under   the   deed   are  as  much  bound  as   the  original  party 
through  whom  they  claim.     Demeyer  a.  Legg,  18  Barb.,  14.     And 
see  McBurney  a.  Cutler,  18  Barb.,  203. 

Tit.  IV.  Judgments   and  Judicial  Proceedings,   4 ;   JUDGMENTS,    8 ; 

JUSTICES'  COURT,  tit.  Jurisdiction,  2. 

IX.  Hearsay. 

1.  In  a  libel  suit  the  terms  and  conditions  on  which  the  defendant  re- 
quested and  directed  the  publication  to  be  made  are  admissible  in 
evidence  on  his  behalf,  as  part  of  the  res  gestce  showing  his  motives. 
Where  such  evidence  was  excluded  on  the  trial  and  the  defendant 
excepted,  though  afterwards  plaintiff  proved  by  other  testimony  the 
publication  of  the  same  libel  at  another  tune,  the  defendant  is  not 
thereby  precluded  from   the  benefit  of  his   exception.     Taylor   a. 
Church,  4  Seld.,  452. 

2.  Admissions  of  a  party  holding  written  securities  for  a  debt  made 
while  he  is  owner  of  them  are  not  necessarily  evidence,  as  a  part  of 
res  yestee  against  his  assignee,  but  under  some  circumstances  may  be 
excluded  as  hearsay.     Booth  a.  Swezey,  4  Seld.,  276. 

X.  Lost  Instruments. 

1.  The  rule  which  permits  secondary  evidence  of  the  contents  of  a  lost 
deed  to  be  given,  requires  clear  proof  of  the  contents  of  the  deed,  and 
such  as  leaves  no  reasonable  doubt.     Proof  of  the  negotiations  which 
led  to  the  giving  of  the  deed,  or  of  what  was  agreed  to  be  conveyed, 
is  inadmissible.     McBurney  a.  Cutler,  18  Barb.,  203. 

2.  A  check  is  a  bill  of  exchange  within  the  statute,  authorizing  a  re- 
covery upon  a  lost  bill  of  exchange  when  the  bond  of  indemnity 
required  by  the  statute  is  tendered  to  the  defendant  upon  the  trial, 
and  parol  proof  of  the  contents  of  the   instrument   given.     Jacks 
a.  Darrin,  Ante,  148. 

3.  The  provision  of  the  Revised  Statutes  requiring  indemnity  to  be 
given  in  order  to  entitle  to  a  recovery  on  a  lost  note  or  bill  of  ex- 
change, (2  Rev.  Stat.,  406,^)  amended,  so  as  not  to  apply  to  any 


NEW-YOKE.  525 


January — July,    1855. 


action  in  which  the  people  of  the  State  are  a  party.     Laws  of  1855, 
123,  Ch.  85. 

XI.  Notice  to  Produce  Papers. 

A  copy  of  a  letter  addressed  by  the  plaintiff  to  the  defendant,  demand- 
ing payment  of  the  money  for  which  the  action  is  brought,  should  not 
be  received  in  evidence  to  prove  the  demand,  except  on  proof  of 
notice  to  the  defendant  to  produce  the  original.  Weeks  a.  Lyon, 
18  Barb.,  530. 

XII.  Parol  Proof  to  Explain  or  Vary. 

1.  Parol  evidence  is  admissible  to  prove  that  a  deed  absolute  in  terms 
was  intended  as  a  mortgage.     (Per  JOHNSON,  J.,  RUGGLES,  Ch.  J., 
and    GARDINER,  JEWETT,  and   MORSE,  J.J. ;    Contra,  WILLARD, 
TAGGART,  and  Mason,  J.  J.)     Hodges  a.  The  Tennessee  Marine  and 
Fire  insurance  Co.,  4  Seld.,  416. 

2.  Parol  evidence  is  not  admissible  to  show  that  a  receipt  of  a  sum  in 
full  of  damages  was  given  upon  a  condition  not  expressed  in  it,  for 
the  purpose  of  getting  rid  of  the  effect  of  the  receipt.     (Eggleston  a. 
Knickerbocker,  6  Barb.,  458 ;  and  White  a.  Parker,  8  Barb.,  48, 
compared  and  explained)  ;  Coon  a.  Knap,  4  Seld.,  402. 

3.  Correspondence  between  the  parties  to  an  agreement  bearing  date 
prior  to  the  agreement,  is  inadmissible  (the  date  being  unimpeached) 
in  explanation  of  the  written  contract.     Coons  a.  Chambers,  Ante,  165. 

4.  The  meaning  of  letters  and  abbreviations  used  in  a  written  contract 
may  be  proved  by  parol.  Dana  a.  Fiedler,  1 E.  D.  Smith's  G.  P.  R.,  463. 

5.  It  is  a  familiar  rule  that  parol  proof  of  extrinsic  circumstances  may 
be  given  to  apply  a  description  to  its  subject  matter ;  and  that  if  it 
appears  that  the  description  is  in  some  parts  erroneous,  those  parts 
may  be  rejected,  and  what  is  left,  if  sufficient  of  itself,  alone  be  re- 
garded.    ( 21   Wend.,  651 ;  9  Bjrb.,  630  ;  1   Wend.,  541 ;  19  Johnson, 
448 ;  7  Johnson,  218 ;  1   Greenlf.  Ev.,  §§  285-288 ;  9  How.  Pr.  R., 
479  ;  4  Mete.  80 ;  12  Pick.,  557).     This  rule  applied  to  descriptions 
of  an  indebtedness  and  of  mortgaged  property  contained  hi  a  chattel 
mortgage.     Dodge  a.  Potter,  18  Barb.,  193. 

6.  It  seems,  that  as  between  the  original  parties  to  a  bill  of  lading  it  is 
competent  to  the  plaintiff  to  show  that  the  shipper  named  in  the  bill 
was,  in  fact,  the  agent  of  the  plaintiff,  although  not  so  described  in 
the  bill,  and  that  the  goods  were  shipped  on  the  plaintift's  account. 
Such  evidence  neither  contradicts,  varies,  nor  explains  the  writing; 
it  merely  goes  beyond  it  to  establish  a  new  and  independent  fact. 
(7  Ad.  $  E.,  29.)     Ide  c.  Sadler,  18  B  rb.,  32. 

7.  Where  in  a  deed  to  trustees  for  religious  purposes  the  use  is  ex- 


526  ABBOTTS'  PRACTICE  DIGEST. 


Reports  and  Statutes 


pressed  in  general  terms,  it  cannot  be  inferred  that  it  was  intended  to 
limit  the  use  to  the  support  of  the  particular  faith  which  the  donor 
professed ;  though,  if  the  language  of  the  trust  be  ambiguous,  perhaps 
the  faith  of  the  donor  may  be  received  in  evidence  to  aid  in  its  con- 
struction. Robertson  a.  Bullions,  1  Kern.,  243. 

8.  Several  instruments  though  of  the  same  date  and  subject  matter,  can- 
not be  construed  together  as  one  contract,  unless  they  are  between 
the  same  parties.     Craig  a.  Wells,  1  Kern.,  315. 
XIIL   Admissions. 

1.  The  admissions  and  confessions  of  parties  are  admissible  in  evidence 
when  pertinent  to  the  issue.     They  are  not  by  any  means  conclusive, 
and  not  necessarily  even  prima  facie  evidence.     They  may  be  con- 
trolled and  overborne  by  other  evidence ;  but  when  they  relate  to 
matters  material  to  the  issue,  they  should  be  received,  and  the  effect 
to  be  given  to  them  rests  wholly  with  the  jury.    If  it  appears  that  the 
party  had  no  personal  knowledge  of  the  facts  admitted,  but  little  im- 
portance is  to  be  attached  to  the  admission,  and  the  jury  should  be  so 
instructed.     Stephens  a.  Vronan,  18  Barb.,  250. 

2.  Where  plaintiff  proves  an  admission  of  defendant,  defendant  may  in- 
quire further  in  regard  to  it,  and  prove  all  that  was  said  on  the  sub- 
ject at  the  same  time.     Hough taling  a.  Kelderhouse,  1  Parker's  Cr. 
R.,  241. 

3.  Where  the  liability  of  defendant  is  sought  to  be  proved  by  inference 
from  circumstances  and  from  his  verbal  declarations  and  admissions, 
he  is  entitled  to  demand  that  all  the  circumstances  and  all  his  conver- 
sations relating  to  the  subject  matter  should  be  taken  into  considera- 
tion.    Nesbit  a.  Stringer,  2  Duer,  26. 

4.  Where  defendant  had  rendered  an  account  to  which  the  plaintiffs 
made  no  objection  at  the  time,  but  drew  on  him  for  the  precise  bal- 
ance,— -Held,  that  this  was  conclusive  evidence  that  the  items  were 
agreed  to,  and  that  the  account  was  an  account  stated.     Lockwood  a. 
Thorne,  1  Kern.,  170. 

5.  An  admission  by  one  of  two  plaintiffs,  embodied  in  his  agreement 
with  a  third  party,  to  the  effect  that  the  note  now  in  suit  was  void, — 
Held  admissible  in  favor  of  the  present  defendant.     Pringle  a.  Cham- 
bers, Ante,  58. 

Tit.  III.,  Presumptions,  3,  4  ;  tit.  IV.,  Judgments  and  Judicial  Proceed- 
ings, 6  ;  tit.  IX.,  He  irs  >y,  2. 
XIV.   Opinions  end  Belief  of  Witnesses. 

1.  The  opinions  of  witnesses  not  examined  as  experts,  held  inadmissible. 
Dunlap  a.  Snyder,  17  Barb.,  561  ;  Brown  a.  The  Mohawk  &  Hud- 


NEW-YOEK.  527 


January — July,   1855. 


son  Rail  Road  Company,  1  How.  App.  Gas.,  52 ;  Lee  a.  Bennett, 
How.  App.  Cos.,  187 ;  Duff  a.  Lyon,  1  E.  D.  Smith's  G.  P.  R.,  536 ; 
Parsons  a.  Disbrow,  Ib.  547 ;  Woodin  a.  The  People,  1  Parker's 
Gr.  R.,  464 ;  Holmes  a.  Anderson,  18  Birb.,  420 ;  Simmons  a.  Fay, 
1  E.  D.  Smith's  G.  P.  R.,  107  ;  but  see  Harper  a.  Leal,  10  How.  Pr. 
R.,  276. 

2.  The  opinions  of  witnesses  not  examined  as  experts  may  be  admissi- 
ble from  the  necessity  of  the  case.     Rochester  &  Syracuse  R.  R.  Co- 
a.  Budlong,  10  How.  Pr.  R.,  289. 

3.  The  rule  that  opinions  may  be  received  on  questions  of  value  but  not 
on  questions  of  damages,  explained.     Ib. 

4.  The  opinion  of  a  qualified  witness  upon  the  future  value  of  lands,  or 
their  probable  diminution  in  value  in  a  supposed  state  of  facts,  held 
admissible.     Ib. 

5.  The  opinion  of  a  physician  examined  as  an  expert,  may  be  asked 
upon  an  hypothetical  state  of  facts.     Lake  a.  The  People,  1  Parker's 
Gr.  R.,  495. 

6.  The  opinion  of  a  physician  examined  as  an  expert  must  be  based  on 
all  the  testimony  relating  to  the  matter ;  and  if  he  has  only  heard  a 
part,  his  opinion  is  inadmissible.     Lake  a.  The  People,  1  Parker's 
Gr.  R.,  495. 

7.  The  admissibility  of  the  opinions  of  witnesses  as  to  the  value  of 
property  which  they  have  not  seen,  considered.     Harper  a.  Leal,  10 
How.  Pr.  R.,  27 G. 

XV.    In  Certain  Actions. 

1.  Pleadings,  evidence  and  measure  of  damages,  in  actions  of  trespass. 
Levy  a.  Bend,  1  E.  D.  Smith's  G.  P.  JR.,  169;  Ives  a.  Humphreys, 
Ib.,  196. 

2.  As  to  rules  of  evidence  in  cases  of  claims  for  the  return  of  fugitives 
from  service.     Belt's  Case,  1  Parker's  Gr.  R.,  169. 

3.  In  an  action  upon  a  covenant,  under  an  averment  of  performance, 
evidence  in  excuse  of  non-performance  is  not  admissible.     Oakley  a. 
Morton,  1  Kern.,  25. 

4.  In  an  action  of  assault  and  battery,  provocations  of  long  standing  at 
the  time  of  the  assault  cannot  be  proved  in  mitigation.     Willis  a. 
Forrest,  2  Duer,  310. 

5.  In  an  action  to  recover  the  value  of  a  trunk  and  contents  lost  on  the 
defendants'  rail  road, — held,  that  the  fact  that  the  plaintiff  was  a  pas- 
senger, and  that  the  defendants  took  his  baggage,  was  sufficiently 
proved  by  his  possession  of  the  baggage  check  and  the  testimony  of 
the  baggage-master  to  the  custom  of  giving  checks.     Davis  u.  The 
Cayuga  &  Susquehanna  R.  R.  Co.,  10  How.  Pr.  R.,  330. 


528  ABBOTTS'  PRACTICE  DIGEST. 


Reports  and  Statutes. 


6.  Evidence  of  general  reputation  for  negligence  inadmissible  to  prove 
negligence  upon  a  particular  occasion.     Jacobs  a.  Duke,  1  E.  D. 
Smith's  G.  P.  R.,  271. 

7.  In  an  action  for  damages  for  injuries  to  the  person,  evidence  of  the 
plaintiff's  complainings  of  distress  and  pain  is  admissible.     Caldwell 
a.  Murphy,  1  Kern.,  416. 

8.  In  an  action  for  damages  for  injuries  to  the  person,  evidence  of  the 
nature  of  the  plaintiff's  trade,  that  he  had  no  other  means  of  support, 
except  the  charity  of  friends,  of  the  number  of  persons  in  his  family, 
and  in  what  manner  they  were  supported  after  the  injury,  is  admissi- 
ble to  show  that  the  plaintiff's  circumstances  were  such  that  he  would 
probably  have  been  in  employment  but  for  his  injuries.    Caldwell  a. 
Murphy,  1  Kern.,  416. 

9.  Whether  in  an  action  for  slander  evidence  in  mitigation  is  admissible 
under  a  plea  of  justification  ;    Query  ?    Bush  a.  Prosser,  1  Kern.,  347. 

10.  In  an  action  against  the  proprietor  of  a  newspaper  for  libel,  an 
article  published  in  his  newspaper,  if  sufficiently  connected  with  the 
defendant  by  proof,  may  be  read  in  evidence  to  show  the  circulation 
of  the  paper,  and  the  proprietor's  income  from  it.     Fry  a.  Bennett, 
Ante,  289. 

11.  In  a  suit  for  malicious  prosecution,  the  plaintiff  must  prove  the 
entire  want  of  probable  cause  for  the  accusation,  and  actual  malice 
on  the  part  of  the  defendant,  in  preferring  it.     Whether  there  was 
actual  malice  is  a  question  of  fact  which  must  be  decided  by  the  jury. 
But  whether  there  was  probable  cause  is  in  all  cases  a  question  of 
law  which  the  court  alone  is  competent  to  determine,  and  upon  which 
it  is  bound  to  express  a  positive  opinion.     It  is  no  more  a  mixed 
question  of  law  and  fact  than  any  other  question  of  law  which  a  judge 
can  be  required  to  determine  in  the  progress  of  a  trial.     If,  there- 
fore, the  facts  are  admitted  or  clearly  established,  and  the  judge  is  of 
opinion  that  they  do  not  prove  a  want  of  probable  cause,  he  must 
either  non-suit  the  plaintiff  or  instruct  the  jury  to  find  for  the  defend- 
ant.    But  if  the  facts  are  doubtful,  he  must  instruct  the  jury  that  if 
the  facts  shall  be  found  by  them  in  a  certain  manner,  they  do  or  do 
not,  as  the  case  may  be,  amount  to  a  want  of  probable  cause.      It  is 
error  to  submit  the  question  of  probable  cause  to  the  jury  even  by 
implication.     Bulkeley  a.  Smith,  2  Duer,  261. 

12.  An  action  for  seduction  can  be  sustained,  although  it  be  not  shown 
that  the  minor  daughter  was  actually  in  her  father's  service,  or  that 
he  incurred  any  trouble  or  expense  in  her  sickness ;  it  is  sufficient  if 
he  was  legally  entitled  to  her  services.      Mulvehall  a.   Millward, 
1  Kern,  343. 


NEW-YORK.  529 


January — July,   1855. 


Tit.  II.  Burden  of  Proof.     Tit.  III.  Presumption,  2,  3,  4.     Tit.  IX., 
Hearsay.     ANSWER,  32.     WITNESS  tit.  Competency,  10. 

EXAMINATION  OF  ASSIGNOR. 

1.  There  is  no  reason  for  restricting  the  provision  of  the  Code  allowing 
a  party  to  be  examined  in  his  own  behalf,  when  the  assignor  of  a 
chose  in  action  has  been  examined  by  the  adverse  party,  to  the  case 
of  the  examination  of  a  voluntary  assignor.     It  applies  also  where 
the  assignment  is  made  in  pursuance  of  law  or  the  direction  of  a 
court  or  officer.     Gardner  a.  Clark,  17  B  rb.,  538. 

2.  A  person  who  sells  a  promissory  note,  whether  by  indorsement  or  not, 
is  an  assignor  of  a  thing  in  action,  within  the  meaning  of  section  399 
of  the  Code.     Potter  a.  Bushnell,  10  How.  Pr.  R.  94. 

3.  One  who  transfers  a  promissory  note  by  delivery  and  without  indorse- 
ment, is  not  an  assignor  of  a  thing  in  action,  within  the  meaning  of  sec- 
tion 399  of  the  Code.     And  when  in  an  action  upon  the  note  he  has 
been  examined  on  behalf  of  the  plaintiff,  this  does  not  entitle  the 
adverse  party  to   offer  himself  as  a  witness.     Watson,  a.  Bailey, 
2  Duer,  509. 

4.  So  of  the  indorser  of  a  promissory  note.     Hicks  a.  Wirth,  10  How. 
Pr.  R.,  555. 

5.  The  fact  that  an  assignor  of  a  chose  in  action  has  covenanted  with 
the  assignee  that  the  full  amount  of  the  claim  was  due,  does  not  ren- 
der him  incompetent  to  prove  the  claim  in  a  suit  by  the  assignee. 
Winthrop  a.  Meyer,  Ante,  383.     Compare  Van  Wyck  a.  Mclntosh, 
2  Duer,  86.  ' 

6.  It  is  only  necessary  to  give  notice  of  the  intended  examination  of 
an  assignor  of  a  chose  in  action,  when  he  is  to  be  examined  against 
an  assignee,  executor,  or  administrator.     Collins  a.  Knapp,  18  Barb., 
532;  Farley  a.  Flanagan,  1  E.  D.  Smith,  C.  P.  R.,  313. 

7.  The  provision  of  the  Code,  requiring  ten  days'  notice  of  the  intended 
examination  of  an  assignor  of  a  chose  in  action  is  applicable  to  jus- 
tices' courts.     It  constitutes  a  rule  of  evidence  within  the  meaning 
of  section  64,  subd.  15.     Collins  a.  Knapp,  18  Barb-,  532;  Pelham 
«.  Bryant,  10  Pow.  Pr.  R.  60. 

8.  Where  a  defendant  is  entitled  to  offer  himself  as  a  witness  in  reply 
to  the  testimony  of  an   assignor,  examined  by  the  adverse  party, 
his  examination  is  not  limited  to  the  identical  points  as  to  which  the 
assignor  was  examined,  but  he  may  testify  as  to  the  same  matter. 
Gardner  <i.  Clark,  17  B  rb.,  538.    See  also  Ward  a.  Ingraham,  1  E. 
D.  Smith's  C.  P.  R.,  538. 

34 


530  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

9.  The  testimony  of  the  assignees  of  a  chose  in  action,  to  be  received 
with  caution.     Watkins  a.  Cousall,  1  E.  D.  Smith's  O.  P.  R.,  65. 
ASSIGNMENT,  9. 

EXAMINATION  OF  PARTIES. 

1.  In  all  actions  a  defendant  is  a  competent  witness  for  his  co-defendant ; 
but  as  to  the  subject  matter  of  his  examination,  he  is  restricted  to 
answering  questions  tending  to  establish  a  defence  of  which  the  co- 
defendant  may  avail  himself  separately.     What  matters  are  such, — 
considered.     Beal  a.  Finch,  1  Kern.,  128.    Lefever  a.  Brigham,  10 
How.  Pr.  R.,  385. 

2.  Where    a   plaintiff  calls  the  defendant  as  a  witness,  to  prove  the 
plaintiff's  claim,  and  the  defendant,  on  a  cross-examination  in  his 
own  behalf,  proves  a  counter-claim,  as  set  up  in  his  answer,  the 
plaintiff  may  be  examined  in  reference  to  the   evidence  given  by 
the   defendant,  on    the  subject   of  the   counter-claim.     Harpell   a. 
Irwin,  Ante,  144. 

3.  Where  a  defendant,  sued  upon  an  agreement,  was  examined  on  be- 
half of  the   plaintiff  to  prove  the   alleged  breach;  and  afterwards, 
upon  his  cross-examination,  he  stated  the  reason  why  he  had  not  per- 
formed the  alleged  agreement, — Held,  that  this  was  not  such  new 
matter  as  authorized  the  plaintiff  to  offer  himself  as  a  witness,  under 
section  395  of  the  Code.    Chamberlain  a.  Hamlinton,  18  Barb.,  324. 

DEPOSITION  ON  COMMISSION,  1 ;  EXAMINATION  OF  ASSIGNOR,  1,  3, 
4,  8 ;  WITNESS  tit.,  Contradiction  and  Impeachment,  6. 

EXCEPTIONS,  BILL  OF. 

1.  When  a  charge  given  by  the  court,  on  the  trial  of  a  cause,  contains 
several  distinct  propositions,  and  exception  is  taken  to  the  charge  gen- 
erally, if  either  proposition  be  sound  and  correct,  the  exception  will 
be  unavailable.     Hart  a.  The  Rensselaer  &  Saratoga  R.  R.  Co.  4 
Seld.,%1;  Acker  a.  Ledyard,  Ib.  62;  CaldweU  o.  Murphy,  1  ./Tera.,416. 

2.  Where  the  defendant  requested  the  judge,  after  his  charge  to  the 
jury,  to  give  them  further  a  certain  instruction,  which  the  judge  refu- 
sed to  do ;  to  which  refusal,  and  to  the  whole  charge,  as  made,  the 
defendant  excepted — Held,  that  the  exception  to  the  refusal  was  suffi- 
ciently pointed ;  but  the  exception  to  the  whole  of  the  charge  as 
made  was  entirely  too  general,  and  must  be  disregarded.     Booth  a. 
Swezey,  4  Seld.,  276. 

3.  A  general  exception  "  to  each  and  every  part  of  the  charge,"  must 
be  disregarded.     Caldwell  a.  Murphy,  1  Kern.,  416. 


NEW-YORK.  531 


January — July,    1855. 


4.  But  where  the  bill  of  exceptions  shows  expressly  that  each  of  the 
offers  and  requests  was  separately  made  and  ruled  upon,  and  that 
each   of  these  decisions  was   severally  excepted  to  it,  is  sufficient. 
Dunckel  a.  Wiles.     1  Kern.  420. 

5.  The  refusal  of  a  judge  to  receive  testimony  after  the  case  is  closed, 
in  the  exercise  of  his  judicial  discretion,  not  reviewable  upon  a  bill 
of  exceptions.     Chancel  a.  Barclay,  1  E.  D.  Smith's  C.  P.  £.,  384. 

6.  Whether  counsel  shall  be  permitted  to  address  the  jury,  is  a  matter 
resting  in  the  sound  discretion  of  the  court ;  and  if  a  judge  at  the 
trial  errs  in  the  exercise  of  this  discretion,  the  remedy  is  by  motion 
for  a  new  trial  on  a  case,  and  not  by  bill  of  exceptions.     The  People 
a.  Cook,  4  SeUL,  67. 

7.  The   privilege  to  make  a  case,  with  leave  to  turn  it  into  a  bill  of 
exceptions,  should  be  applied  for  at  the  trial.     Even  then  it  should 
only  be  granted  as  a  matter  of  favor,  and  upon  good  reason.     A  mo- 
tion for  such  leave,  made  after  the  trial,  should  only  be  granted  under 
very  special  circumstances.     Hammond  a.  Hazard,  1  E.  D.  Smith's 
C.  P.  R.,  314. 

8.  What  should  the  bill  of  exceptions  contain  ?     Exceptions  contained 
in  a  case  should  be  separated  from  it,  in  order  to  present  the  ques- 
tions of  law  to  the  court,  on  appeal.     Where  the  return  shows  that 
the  exceptions  were  taken  at  the  trial,  and  separately  stated,  it  is  not 
necessary  that  they  should  be  authenticated  by  the  court  below.     If 
they  do  not  appear,  from  the  return,  to  have  been  separately  stated 
in  the  first  instance,  or  to  have  been  separated  from  the  case  made 
under  direction  of  the  court  below,  the  Court  of  Appeals  have  power 
to  dismiss  the  appeal.     Zabriskie  a.  Smith,  1  Kern.,  480. 

9.  To  prevent  a  failure  of  justice,  the  court  will  order  a  bill  of  excep- 
tions, when  a  case  containing  the  exceptions  has  been  properly  set- 
tled, to  be  signed  by  the  clerk,  in  the  name  of  a  deceased  judge  who 
tried  the  cause.     Milvehal  a.  Milward,  2  Duer,  G07. 

CRIMINAL  LAW,  tit.  Writ  of  Error,  2,  4;  EVIDENCE,  tit.  Hearsay.  1. 

EXECUTION. 

1.  Judgment  was  recovered  in  a  court  of  common  pleas,  now  county 
court,  but  execution  issued  by  mistake  out  of  the  Supreme  Court, 
which  was  afterwards  amended  by  the  county  court. — Held,  that  the 
execution,  notwithstanding  the  attempted  amendment,  was  void. 
Judgments  must  be  executed  in  the  courts  in  which  they  are  ren- 
dered, and  the  Supreme  Court  could  not  assume  to  execute  this  judg- 
ment of  another  court.  The  power  incidental  to  every  court  to 


532  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Salutes. 

amend  its  own  process,  does  not  authorize  it  to  amend  the  process 
issued  from  another  court.  Void  process  cannot  be  amended,  for  the 
reason  that  there  is  nothing  to  amend  by.  The  writ  issuing  out 
of  the  Supreme  Court,  and  returnable  in  that  court,  there  is 
nothing  in  the  county  court  to  amend  by.  The  county  court  could 
not  amend  anything  that  had  been  done  in  that  court  towards  the 
execution  of  that  judgment — for  nothing  had  been  done  in  that  court. 
Clarke  a.  Miller,  18  Barb.,  269. 

2.  Where,  by  reference  to  the  judgment,  it  appears  to  have  been  ren- 
dered in  an  action  wherein  the  party  was  liable  to  imprisonment,  a 
party  will  not  be  discharged  from  arrest  upon  an  execution -against 
the  person  for  the  reason  that  the  nature  of  the  action  does  not  ap- 
pear upon  the  face  of  the  execution.     Fullerton  a.  Fitzgerald,  18 
Barb.,  441.     S.  C.  10  How.  Pr.  R.,  37. 

3.  Where  an  execution  issued  against  two  joint  debtors  has  been  levied 
upon  the  property  of  one  of  them,  the  plaintiff  will  not  be  allowed 
to  countermand  it,  and  issue  a  new   execution  for  the  purpose  of 
making  a    levy  upon   the    sole    property  of  the  other  defendant, 
especially  if  it  appears  that  the  first  execution  was  withdrawn  at  the 
request  of  the  debtor  upon  whose  property  it  was  levied,  and  vrith 
the  express  purpose  of  screening  him  from  the  payment  of  any  part 
of  the  debt,  and  collecting  the  whole  from  the  property  of  his  co- 
defendant.     McChain  a.  Duffy,  2  Duer,  645. 

4.  The  act  of   1842,  ch.  157,  exempting  certain   property  of  a  debtor 
from   execution,  applies  equally  to  the  case  of  a  debt  incurred  be- 
fore its  passage  as  subsequently.     Morse  a.  Goold,  1  Kern.,  281. 

5.  H.  gave  a  note  containing  the  following  clause  :  "  and  for  the  pay- 
ment of  the  same  (the  amount)  I  agree  to  and  with  them  to  waive 
all  exemptions  to  property  " — Held,  that  such  a  clause  did  not  estop 
her  from  bringing  an  action  for  the  taking  of  exempt  property  under 
an  execution  issued  upon  a  judgment  recovered  on  the  note.     Such 
a  clause  is  totally  void  as  in  contravention  of  the  spirit  of  our  statutes 
and  of  public  policy.     Harper  a.  Leal,  10  How.  Pr.  R.,  276. 

6.  What  evidence  is  sufficient  to  show  an  execution  fraudulent  or  dor- 
mant.    Paton  a.  Westervelt,  2  Duer,  362. 

7.  Execution  against  executors  for  the  full  amount  of  the  judgment 
against  the  estate  of  the  deceased,  when   the   executor's  account 
having  been  rendered  and  settled,  there  were  not  sufficient  assets  to 
pay  all  claims — Held,  irregular.     It  should  have  been  for  a  just  pro- 
portion of  the  amount  of  the  assets.    Plaintiff  in  this  case  had  liberty 
to  amend  on  payment  of  costs  of  the  motion  to  strike  out.    Ohnstead 
a.  Vredenburgh,  10  How.  Pr.  R.,  215. 


NEW  YORK  533 


January — July,  1855. 


8.  Execution  cannot  issue  upon  a  judgment  after  the  death  of  the 
judgment  creditor.  The  remedy  of  the  executor  is  properly  to  be 
sought  by  original  action.  Thurston  a.  King,  Ante,  126 ;  Jay  a. 
Martine,  2  Duer,  654. 

ATTACHMENT,  2  ;  COMPLAINT,  5  ;  JUSTICES'  COURT,  tit.  Execution ; 
SHERIFF,  3,  4  ;  STAY  OF  PROCEEDINGS,  4. 

EXECUTORS  AND  ADMINISTRATORS. 

The  only  effect  of  omitting  to  present  to  an  executor  or  an  administra- 
tor a  claim  against  his  testator  within  the  six  months  prescribed  by 
2  Rev.  Stats.,  88,  §  34,  is,  to  limit  the  recovery  in  a  subsequent  suit 
upon  the  claim  to  the  amount  of  assets  in  the  hands  of  the  adminis- 
trator or  executor  at  the  commencement  of  the  suit ;  and  to  deprive 
the  creditor  of  the  right  to  costs.  The  right  of  action  is  not  barred 
where  the  claim  was  not  presented  at  all,  but  only  where  it  was  pre- 
sented and  disputed  or  rejected,  and  was  neither  referred  nor  prose- 
cuted within  six  months  afterwards.  Baggott  a.  Boulger,  2  Duer,  160. 

AMENDMENT,  11  ;  ASSIGNMENT,  10;  COMPLAINT,  27;  EXAMINATION 
OF  ASSIGNOR,  6 ;  EXECUTION,  7,  8 ;  JOINDER  OF  ACTIONS,  6 ; 
MOTIONS  AND  ORDERS,  4 ;  PARTIES,  12,  13,  14,  15. 

FRIVOLOUS  ANSWER. 

ANSWER,  7,  8,  9,  10,  11 ;  MOTIONS  AND  ORDERS,  10. 

GENERAL  AND  SPECIAL  TERM. 

AMENDMENT,  10;  APPEAL,  13,  17;  COURT;  IMPRISONMENT;  JUDG- 
MENT, 2  ;  MOTIONS  AND  ORDERS,  1,  2,  4,  6,  7. 

GUARDIAN  AD  LITEM. 

1.  As  to  the  mode  of  executing  a  deed  by  a  guardian  ad  litem  on  be- 
half of  a  minor  pursuant  to  order  of  court.     Hyatt  a.  Seeley,  1 
Kern.,  52. 

2.  The  requisites  of  an  appointment  of  a  guardian  ad  litem  for  minors 
parties  to  a  partition  suit,  considered.    Varian  a.  Stevens,  2  Duer,  635. 

PARTIES,  20. 

HABEAS  CORPUS. 

1.  How  far  the  officer  granting  habeas-corpus  is  concluded  by  the  re- 
turn, and  in  what  cases  he  may  look  behind  it.     People  a.  Martin,  1 
Parker's  Cr.  R.,  187  ;  People  a.  Tompkins,  lb.,  224. 

2.  Proceedings  prior  to  a  commitment  for  vagrancy  cannot  be  reviewed 
on  habeas  corpus,  if  that  commitment  is   regular,  and  the  record  of 
conviction  is  properly  made  and  filed.     Stewart's  case,  Ante,  210. 


534  ABBOTTS'  PRACTICE  DIGEST. 


Reports  and  Statutes. 


3.  Where  the  record  of  conviction  should  be  filed.     Ib. 

4.  That  a  judgment  of  conviction  does  not  designate  the  particular 
offence  of  which  the  prisoner  was  convicted — and  that  the  prisoner 
convicted  in  King's  County  has  been  sentenced  to  imprisonment  ex- 
ceeding thirty  days  in  the  county  jail  instead  of  in  the  penitentiary 
as  required  by  statute  (Laws  of  1853,  ch.  110,  §  2) — are  errors 
upon  which  the  prisoner  is  entitled  to  his  discharge  upon  habeas  cor- 
pus*    Cavanagh's  case,  10  How.  Pr.  R.,  27.     S.  C.  1  Parker's  Gr. 
R.,  588. 

5.  The  principle  of  res  adjudicata  applies  to  proceedings  upon  habeas 
corpus.     The  decision  of  an  officer  empowered  to  issue  and  decide 
upon  a  writ  of  habeas  corpus,  is  conclusive  upon  any  subsequent  writ 
where  the  subject  matter  and  the  parties  are  the  same.     And  the 
parties  are  the  same  where  relief  is  sought  in  behalf  of  the  same  per- 
son against  the  same  respondent.     That  the  relators  are  different, 
does  not  alter  the  case.     Da  Costa's  Case,  1  Parker's  Or.  R.,  129. 

6.  Forms  of  habeas  corpus  and  of  returns  thereto.     People  a.  Tompkins, 
Ib.,  224. 

JURISDICTION,  8. 

HUSBAND  AND  WIFE. 

EVIDENCE,  tit.  Presumptions,  2,  3,  4 ;  JOINT  LIABILITY,  1 ;  MARRIED 
WOMEN  ;  PARTIES,  19 ;  WITNESS,  tit.  Competency,  9. 

IMPRISONMENT. 

A  petition  for  the  discharge  of  a  debtor  imprisoned  upon  execution 
must  be  first  presented  to  the  court  at  a  regular  special  term.  It 
cannot  be  heard  at  chambers,  nor  in  the  first  instance  at  general  term. 
Walker's  Case,  2  Duer.,  655. 

ARREST,  2,  4,  5 ;   COMPLAINT,  5 ;   EXECUTION,  2 ;  NON-IMPRISON- 
MENT ACT. 

INFANT. 

DISCONTINUANCE,  6 ;  GUARDIAN  AD  LITEM  PARTIES,  20. 

INJUNCTION. 

1.  Where  an  action  was  brought  on  behalf  of  one  firm  out  of  a  large 
number  of  creditors  of  an  insolvent  firm,  and  was  brought  not  only 
against  the  general  partners  of  the  firm,  but  also  against  a  special 
partner  who  denied  his  indebtedness ; — Held,  that  an  application  for 


This  decision  is  said  to  have  been  since  reversed  by  the  general  term. 


NEW-YORK.  535 


January — July,  1855. 


an  injunction  and  the  appointment  of  a  receiver  must  be  denied. 
La  Chaise  a.  Lord,  Ante,  213. 

2.  To  warrant  the  granting  of  such  an  application ; — It  should  be  made 
in  behalf  of  all  the  creditors  of  the  insolvent  firm  who  will  unite 
therein ; — And  all  the  defendants  sought  to  be  made  liable  as  part- 
ners should  admit  the  indebtedness.     Ib. 

3.  As  a  general  rule  an  injunction  will  not  be  allowed  upon  mere  infor- 
mation and  belief.     (7  Paige,  157  ;  9  Jb.,  305  ;  1  Barb.,  Ch.  Pr.,  617.) 
Woodruff  a.  Fisher,  17  Barb.,  224. 

4.  If  the  grounds  for  an  injunction  were  existing  at  the  commencement 
of  the  suit,  and  are  fully  set  out  in  the  complaint  under  positive  alle- 
gations, and  if  the  complaint  contains  a  prayer  for  injunction,  the 
complaint  itself,  if  duly  verified,  without  a  separate  affidavit,  is  suffi- 
cient to  support  an  application  for  an  injunction.     But  if  the  cause 
for  the  injunction  arises  during  the  litigation,  then,  as  a  general  rule, 
there  must  be  an  affidavit.     2b. 

5.  An  ex  parte  injunction  should  be  dissolved  if  on  a  hearing  of  both 
sides  fraud  is  denied,  and  it  does  not  appear  that  the  continuance  of 
the  injunction  is  necessary  to  the  rights  of  the  one  party,  while  it  is 
certain  to  be  prejudicial  to  those  of  the  other.     M' Gaffe rty  a.  Glazier, 
10  How.  Pr.  R.,  475. 

6  An  injunction  cannot  be  granted  to  prevent  a  consequential  injury 
necessarily  resulting  from  the  lawful  exercise  of  a  right  granted  by 
the  sovereign  power  of  the  State  or  authorized  by  competent  munici- 
pal authority.  Williams  a.  The  New  York  Central  Railroad  Com- 
pany, 18  Barb.,  222. 

7.  Injunction  should  not  be  issued  unless  the  thing  sought  to  be  pro- 
hibited is  in  itself  a  nuisance.     If  the  thing  to  be  enjoined  is  not  in 
itself  noxious  and  the  risk  of  the  anticipated  injury  is  not  imminent, 
the  court  may  refuse  to  interfere  until  the  matter  has  been  tried  at 

law.     Phoenix  a.  The  Commissioners  of  Emigration,  Ante,  466. 

9.  A  stronger  case  must  be  made  out  where  the  ground  of  the  injunc- 
tion is  anticipated  depreciation  in  the  value  of  the  neighboring  prop- 
erty, than  where  it  is  injury  to  the  health  of  the  neighborhood.     Ib. 

8.  An  immigrant  depot  is  not  a  known  nuisance  in  the  law,  and  will 
not  be  enjoined  as  such.     Ib. 

10.  An  injunction  will  issue  to  restrain  the  State,  or  a  municipal  cor- 
poration, from  maintaining  a  nuisance  on  their  lands.     Ib. 

11.  An  injunction  will  not  be  granted  to  restrain  commissioners  of  ex- 
cise from  granting  licenses  to  sell  intoxicating  liquors  where  no  ex- 
cess of  authority  or  actual  corruption  is  shown.     Leigh  a.  Wester- 
velt,  2  Duer,  618. 


536  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

12.  An  injunction  to  restrain  the  collection  of  a  tax  illegally  imposed 
will  not  be  granted.  Wilson  a.  The  Mayor,  &c.,  Ante,  4 ;  The 
Chemical  Bank  a.  The  Mayor,  &c.,  Ante,  79 ;  The  New  York  Life 
Ins.  Co.  a.  The  Board  of  Supervisors,  &c.,  Ante,  250. 

CONTEMPT,  5,  7  ;  CORPORATION,  7  ;  COURT,  3  ;  JUDGMENT,  21,  23  5 
MORTGAGE,  3 ;  MOTIONS  AND  ORDERS,  8 ;  REPLEVIN,  2. 

INNKEEPER. 

1.  Money  in  a  trunk,  not  exceeding  the  amount  reasonably  required  by 
the  traveler  to  defray  the  expenses  of  the  journey  which  he  has  un- 
dertaken, is  a  part  of  his  baggage ;  and  in  case  of  its  loss,  the  plain- 
tiff may  prove  its  amount  by  his  own  testimony.     Taylor  a.  Monnot, 
Ante,  325 ;  but  see  Grant  a.  Newton,  1  Smith's  C.  P.  _ff.,  95. 

2.  So  of  the  tools  used  by  plaintiff  in  his  trade  as  a  harness  maker,  and 
carried  in  his  trunk  ;  and  so  of  a  gun.    Davis  a.  The  Cayuga  &  Sus- 
quehanna  R.  R.  Co.,  10  How.  Pr.  R.,  330. 

3.  It  seems,  that  the  liability  of  an  innkeeper  for  the  baggage  of  his 
guest,  is  not  confined  to  personal  baggage,  but  extends  to  all  the 
property,  which  as  the  property  of  his  guest,  the  innkeeper  consents 
to  receive.     Taylor  a.  Monnot,  Ante,  325. 

4.  But  see  act  qualifying  the  liability  of  innkeepers  for  "  money,  jewels, 
or  ornaments."     Laws  of  1855,  774,  ch.  421. 

WITNESS,  tit.  Competency,  10. 

INTERPLEADER. 

1.  An  order  of  interpleader,  under  section  122  of  the  Code,  can  only 
be  made  when  it  is  certain   that  the  only  question  is  whether  the 
plaintiff  or  a  third  person  is  the  true  owner  of  the  debt,  fund,  or  other 
property  for  which  judgment  is  demanded ;  and  when  it  is  insisted 
that  the  defendant  is  absolutely  liable,  and  is  precluded  from  setting 
up  the  title  of  a  third  person  as  a  defence,  his  application  to  be  dis- 
charged from  the  suit  must  be  denied.     Sherman  a.  Partridge,  Ante, 
256;  and  see  Chamberlain  a.  O'Connor,  1  E.  D.  Smith's  O.  P.  R.,  665. 

2.  It  is  only  in  an  action  against  the  defendant  himself  that  the  question 
of  his  absolute  liability  can  be  properly  raised  and  determined.     A 
judge  would  exceed  the  just  limits  of  his  authority  by  so  deciding  the 
question  upon  a  motion,  as  to  put  an  end  to  the  action,  and  bar  an 
appeal.     Sherman  a.  Partridge,  Ante,  256. 

3.  In  an  action  for  the  recovery  of  a  debt  arising  from  the  sale  of  goods, 
the  purchaser  cannot  require  his  vendor  to  interplead  with  a  third 
person  claiming  to  be  the  owner  of  the  goods.     This  is  not  a  case  in 
which  an  interpleader  has  ever  been  allowed,  nor  is  it  embraced 
within  the  terms  of  the  Code.    Ib. 


NEW-YORK.  537 


January — July,    1855. 


4.  Where  there  is  a  contest  between  two  adverse  claimants  of  moneys 
collected  by  a  sheriff  upon  execution,  the  court  out  of  which  the  exe- 
cution issued,  may  very  properly  make  an  order  for  the  payment  of 
the  money  into  court ;  and  when  the  sheriff  has  complied  with  the 
order,  he  has  done  his  whole  duty,  and  the  order  is  a  protection  to 
him  in  a  suit  afterwards  brought  against  him  by  one  of  the  claimants, 
for  the  money.  Acker  a.  Ledyard,  4  Seld.,  62. 

COSTS,  7. 

JOINT  LIABILITY. 

1.  Sections  136  and  274  of  the  Code,  providing  for  judgments  against 
one  or  more  of  several  defendants,  were  intended  to  remedy  the  in- 
convenience of  the  common  law  rule,  that  upon  a  joint  contract,  re- 
covery must  be  against  all  the  defendants  or  neither.     In  an  action 
upon  a  promissory  note  made  in  a  firm  name,  it  appearing  on  the  trial 
that  the  alleged  partners  were  husband  and  wife,  a  judgment  against 
the  husband  is  proper.     (But  SELDEN  J.  dissented.)     Brumskill  a. 
James,  1  Kern.,  294. 

2.  The  proceedings  authorized  by  the  Code  to  be  taken  in  suits  brought 
against  defendants  jointly  liable  upon  contract,  may  be  taken  in  a  suit 
brought  upon  a  judgment  rendered  against  defendants  jointly,  upon 
a  contract  upon  which  they  were  jointly  liable.    Mahaney  a.  Penman, 
Ante,  34.   And  see  Wanzer  a.  De  Baun,  1  E.  D.  Smith's  C.  P.  R.,  261. 

3.  Where  several  defendants  are  sued  on  a  joint  liability,  there  can  only 
be  a  joint  recovery  and  judgment ;  and  no  judgment  can  be  entered 
by  plaintiff,  until  all  the  defendants  served  have  had  the  full  time  to 
answer.     Jacques  a.  Greenwood,  Ante,  230. 

APPEAL,  15 ;  COMPLAINT,  28 ;  EXECUTION,  3 ;  LIMITATION  OF  AC- 
TIONS, 4;  PARTIES,  12,  13,  14,  15,  16. 

JOINDER  OF  ACTIONS. 

1.  It  is  essential  to  a  good  complaint,  containing  several  causes  of  action, 
that  they  should  all  belong  to  one  of  the  classes  mentioned  in  167  of 
the  Code,  and  that  they  should  be  separately  stated.     Landau  a. 
Levy,  Ante,  376. 

2.  Judgment  against  the  defendant  personally,  and  as  trustee,  cannot  be 
sought  in  the  same  action.     Ib. 

3.  Allegations  of  conversion  and  detention  of  personal  property  and 
prayer  for  its  specific  delivery  and  for  damages,  held  good,  as  setting 
forth  only  a  single  cause  of  action,  and  demanding  only  one  kind  of 
remedy.     Vogel  a.  Badcock,  Ante,  176. 


538  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

4.  A  complaint  demanded  judgment  as  follows:  1.  For  a  balance  due 
on  a  building  contract  between  plaintiffs  and  defendant.     2.  For  a 
sum  for  extra  work  and  materials.     3.  For  damages  sustained  by 
plaintiffs  in  consequence  of  being  delayed  by  defendant  in  the  com- 
pletion of  the  work.     4.  That  an  award  made  by  an  arbitrator  mutu- 
ally chosen,  in  relation  to  certain  disputes  growing  out  of  the  contract, 
should  be  set  aside  as  obtained  by  fraud  or  undue  influence ;  Held, 
that  as  equitable  and  legal  relief  may  be  sought  in  the  same  action, 
and  all  the  causes  of  action  set  forth  in  the  complaint  grew  out  of  the 
same  transaction,  they  were  properly  united.      See  a.  Partridge,  2 
Duer,  463. 

5.  A  creditor  of  a  partnership,  whose  debt  is  admitted,  may,  in  case  of 
conceded  insolvency,  proceed  in  the  same  suit  to  establish  his  claim 
and  to  set  aside  as  fraudulent  an  assignment  by  the  debtors  of  their 
property  for  the  benefit  of  their  creditors.     Mott  a.  Dunn,  10  How. 
Pr.  R.,  225.     But  see  Neustead  a.  Joel,  2  Duer,  530.      Compare 
Bishop  a.  Houghton,  1  E.  D.  Smith's  C.  P.  R.,  566. 

6.  Demands  for  rent  which  accrued  in  the  life  time  of  a  decedent,  and 
for  rent  accruing  after  his  decease,  while  the  tenancy  was  continued 
by  the  executors  on  account  of  the  estate,  are  properly  joined  as  one 
cause  of  action  in  a  suit  against  the  executors  as  such.     Pugsley  a. 
Aikin,  1  Kern.,  494. 

7.  The  following  causes  may  be  joined  in  an  action  against  a  constable 
and  his  sureties : 

1.  That  the  constable  took  sufficient  goods  on  the  plaintiff's  execution 
to  satisfy  it. 

2.  That  he  neglected  to  make  return. 

3.  That  he  withheld  the  money  after  the  return  day.     But  these  are 
separate  causes  of  action,  and  should  be  separately  stated.    Moore 
a.  Smith,  10  How.  Pr.  R.,  361. 

8.  The  causes  of  action  formerly  known  as  trespass  and  ejectment,  and 
trespass,  quare  clausum  fregit,  as  to  the  same  premises,  cannot  be 
united  in  the  same  complaint,  for  the  reason  that  to  entitle  the  plaintiff 
to  recover  for  the  trespass  he  must  show  himself  to  have  been  in 
possession  when  the  tortious  acts  were  committed,  and  that  he  had 
regained  the  possession  at  the  time  of  the  commencement  of  the 
action ;  while  to  entitle  him  to  maintain  his  action  for  the  ouster,  and 
to  recover  the  possession,  he  must  show  that  the  defendant  had  pos- 
session when  the  action  was  instituted.      When  these  claims  are 
united  the  plaintiff  may  properly  be  required  upon  the  trial  to  elect 
upon  which  of  them  he  will  proceed.    Budd  a.  Bingham,  18  Barb.,  494. 

DEMURRER,  8. 


NEW-YORK.  539 


January — July,   1855. 


JUDGMENT. 

1.  Judgment  upon  appeal  cannot  be  rendered  as  of  a  day  subsequent  to 
the  death  of  a  party  appellant  or  respondent.     But  it  may  be  render- 
ed as  of  a  day  prior  to  his  decease.     Except  that  a  day  cannot  be 
selected  for  this  purpose,  upon  which  the  court  of  appeal  could  not 
have  been  in  session,  or  the  appeal  could  not  have  been  heard.     De 
Agreda  a.  Mantel,  Ante,  130. 

2.  The  proper  form  of  judgment  of  affirmance  upon  appeal  from  the 
special  to  the  general  term,  defined.     Ib. 

3.  The  test  of  the  right  to  docket  a  judgment  is  the  right  to  issue  exe- 
cution upon  it  immediately.     Ib. 

4.  Where  a  joint  answer  of  two  defendants  was  served  after  the  time 
for  answering  by  one  of  them  had  expired,  and  the  plaintiff's  attorney 
returned  it,  waited  until  the  time  of  the  other  defendant  had  also  ex- 
pired, and  then  entered  judgment : — Held,  that  the  judgment  was  reg- 
ular.    Jacques  a.  Greenwood,  Ante,  230. 

5.  In  an  action  for  the  recovery  of  a  debt  fraudulently  contracted,  the 
judgment  record  must  show  the  fraud  in  order  to  hold  the  body  of 
the  defendant  on  execution.     Harris  a.  Cone,  10  How.  Pr.  R.,  259  ; 
and  see  Fullerton  a.  Fitzgerald,  18  Barb.,  441 ;  S.  C.,  10  How.  Pr. 
R.,  37. 

6.  The  proper  practice  in  respect  to  the  form  of  entering  judgment  in 
the  court  below  upon  remittitur  from  the  Court  of  Appeals,  defined. 
The  Union  India  Rubber  Company  a.  Babcock,  Ante,  262. 

7.  In  an  action  on  a  contract  for  the  payment  of  money  only,  where  the 
complaint  is  not  verified  and  the  defendant  has  appeared,  he  is  en- 
titled to  notice  of  assessment  on  entry  of  judgment ;  and  entry  of 
judgment  without  such  notice  is  irregular.     Cook  a.  Pomeroy,  10 
How.  Pr.  R.,  103. 

8.  Where,  a  second  record  of  judgment  in  the  course  of  a  suit  was,  by 
mistake,  made  up  and  filed,  and  execution  issued  thereupon  in  good 
faith  upon  the  supposition  that  the  second  judgment  was,  in  fact,  for 
a  different  demand  from  the  first,  and  the  defendant  contrived  to  pro- 
cure satisfaction  of  the  judgment  first  entered,  and  then  moved  to  va- 
cate the  second  for  irregularity : — Held,  that  he  was,  under  the  cir- 
cumstances, estopped  by  procuring  the  first  judgment  to  be  satisfied, 
from  objecting  to  the  regularity  of  the  second.     Weed  a.  Pendleton 
Ante,  51. 

9.  A  partner  has  no  authority  to  confess  judgment  on  behalf  of  the  firm 
contrary  to  the  wish  of  the  copartner  ;  and  judgment  entered  against 
both  upon  an  accepted  offer  of  one  to  let  judgment  be  taken  against 


640  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

him,  is  irregular,  and  will  not  be  allowed  to  stand  as  against  the  other 
even  as  security,  where  it  appears  to  have  been  entered  by  collusion 
between  the  debtor  offering  and  the  plaintiff.  Everson  a.  Gehrman, 
Ante,  167. 

10.  A  judgment  entered  up  against  two  partners  upon  an  offer  in  writ- 
ing made  by  one,  will  be  set  aside  as  irregular  as  against  the  other, 
unless  there  is   evidence  from  which  it  may  be  inferred  that  he  au- 
thorized or  ratified  the  offer.     Binney  a.  Le  Gal,  Ante,  283. 

11.  The  court  will  not  set  aside  a  judgment  for  non-service  of  summons 
when  it  appears  that  although  the  defendant  had  notice  of  an  attempt 
to  effect  service  upon  him,  he  delayed  to  move,  until  supplementary 
proceedings  were  instituted.     Hilton  a.  Thurston,  Ante,  318. 

12.  .Where  it  appears  that  a  defendant  has  endeavored   to  avoid  the 
service  of  the  summons,  the  court,  on  a  motion  to  vacate  the  judg- 
ment for  non-service  of  the  summons,  will  require  the  defendant  to 
furnish  satisfactory  evidence  that  he  was  not  served.     Southwell  a. 
Marry att,  Ante,  218. 

13.  If  a  married  woman  is  sued  alone  on  a  contract  made  by  her  dur- 
ing coverture,  and  does  not  plead  the  coverture,  but  allows  judgment 
to  pass  by  default,  and  subsequently  applies  on  motion,  to  the  discre- 
tion of  the  court,  to  set  aside  the  judgment  and  execution  issued 
thereon,  the  court  will  not  interfere  when  it  appears  in  answer  to  the 
motion  that  she  obtained  the  credit  by  representing  herself  to  be  a 
widow,  and  that  the  plaintiffs  had  no  notice  to  the  contrary ;  but  will 
leave  her  to  her  remedy  by  appeal,  or  to  other  remedies  that  may  exist 
for  enforcing  strictly  legal  rights.    Genet  o.  Dusenbury,  2  Duer,  679. 

14.  Where  0.  obtained  judgment  against  R.  individually  upon  a  joint 
indebtedness  of  R.  and  W.,  partners,  and  subsequently  the  judgment 
was  vacated  by  consent  and  without  application  to  the  court,  the  vaca- 
tur  was  afterwards,  upon  application  made  by  W.,  so  modified  as  to 
reserve  the  rights  of  W.  and  all  others  not  parties  to  the  record,  so 
that  the  judgment  was  still  evidence  for  them ; — Held,  that  the  judg- 
ment so  reserved  in  force  as  respects  the  rights  of  W.  was  a  good 
defence  to  an  action  brought  against  him  upon  the  same  cause.    Olm- 
stead  a.  Webster,  4  Seld.,  413. 

15.  The  old  form  of  entering  judgment  'upon  bond  and  warrant  of  attor- 
ney to  confess  judgment,  by  declaration  for  the  penalty  of  the  bond, 
cognovit,  and  judgment  for  the  penalty,  is  unauthorized  by  the  Code. 
Allen  a.  Smillie,  Ante,  354. 

16.  The  proper  practice  in  entering  judgment  under  the  Code,  upon 
confession,  or  upon  bond  and  warrant  of  attorney,  signed  before  July 
1,  1848,  defined.     Ik 


NEW-YOKK.  541 


January — July,  1855. 


17.  It  seems,  that  in  entering  judgment  upon  a  bond  and  warrant  of 
attorney  above  five  years  old,  it  is  necessary  to  give  the  defendant 
notice  of  motion  for  judgment.     Ib. 

18.  Where  the  written  statement  and  the  affidavit  in  a  confession  of 
judgment  are  upon  the  same  page,  a  signature  to  the  affidavit  alone 
is  a  substantial  compliance  with  the  provisions  of  the  Code.     In  a 
confession  of  judgment,  a  statement  that  it  is  confessed  for  lumber 
and  building  materials  furnished  by  the  plaintiff  to  the  defendant,  or 
"  for  goods  and  groceries,  and  for  one  horse  and  one  cow  delivered  to" 
the  defendant,  is  insufficient.     Purdy  a.  Upton,  10  How.  Pr.  R.,  494. 

19.  Motion  by  one  not  a  party,  to  set  aside  judgment  by  confession  on 
account  of  insufficiency  in  the  statement,  is  a  "  special  proceeding," 
not  an  "  action "  under  sections  1  and  1 1  of  the  Code,     Belknap  a. 
Waters,  1  Kern.,  477. 

20.  It  is  a  good  defence  to  an  action  upon  a  judgment — whether  brought 
by  the  original  judgment  creditor  or  his  assignee — that  the  judgment 
was  fraudulently  obtained.     Dobson  a.  Pearce,  Ante,  97. 

21.  A  court  of  equity  has  jurisdiction  to  make  a  decree  restraining  a 
judgment  creditor  from  bringing  suits  upon  his  judgment,  upon  the 
ground  that  it  was  fraudulently  obtained.     Ib. 

22.  A  duly  authenticated  record  of  such  a  decree  rendered  in  a  court 
of  equity  of  another  State  having  jurisdiction  of  the  parties,  is  a  con- 
clusive defence  against  the  prosecution  in  a  court  of  this  State,  of  a 
suit  upon  the  judgment  referred  to  in  the  decree.     Ib. 

23.  Such  decree  is  conclusive  upon  the  parties  everywhere  and  in  every 
forum  where  the  same  matters  are  drawn  in  issue ;  not  indeed  as  an 
injunction,  but  as  a  judgment  of  a  court  of  another  State.     Ib. 

ANSWER,  13;  APPEAL,  1,  2,  4,  7,  12,  15,  16,  17,  18;  ARREST,  4,  5; 
ATTACHMENT,  2;  ATTORNEY,  4,  5;  COMPLAINT,  5;  COSTS,  11,  20, 
21  ;  CRIMINAL  LAW,  tit.,  Judgment ;  EVIDENCE,  tit.,  Judgments  and 
Judicial  Proceedings,  2,  3,  4 ;  EXECUTION,  1,  2 ;  JOINT  LIABILITY  ; 
JUSTICES'  COURT  tit.,  Jurisdiction,  5 ;  tit.,  Default,  1 ;  tit.,  Trial,  5, 
6,  7 ;  MORTGAGE,  1 ;  MOTIONS  AND  ORDERS,  210;  PLEADING,  32 ; 
REDEMPTION  ;  REPLEVIN,  3 ;  SERVICE  AND  PROOF  OF,  6 ;  STAY 
OF  PROCEEDINGS,  2 ;  SUMMONS  ;  TRIAL  tit.,  Verdict,  1 ;  tit.,  New 
Trial,  4 ;  VERIFICATION,  1 ;  WRIT  OF  ERROR. 

JURISDICTION. 

1.  There  is  no  power  in  any  of  the  courts  of  this  State  to  entertain  a 
suit  brought  against  the  State  itself,  except  as  authorized  by  statute. 
Kiersted  a.  The  People,  Ante,  385. 


542  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

2.  Query?  whether  the   State  courts  have  not  jurisdiction  over  an 
offence   committed  upon  navigable  tide  waters,  wholly  within  the 
State,  although  the  United  States  Court  have  already  exercised  juris- 
diction over  it.    People  a.  The  Sheriff,  1  Parker's  Cr.  R.,  659. 

3.  The  powers  conferred  by  the  General  Government  upon  the  State 
Courts,  to  admit  aliens  to  citizenship,  cannot  be  delegated  to  the 
clerks  of  those  courts.     They  must  be  exercised  by  the  courts  them- 
selves, upon  a   judicial  examination  of  each  case.     Clark's    case, 
Ante,  90. 

4.  The  failure  of  jurisdiction  in  a  judicial  officer,  when  a  party  to  the 
proceeding  before  him — commented  upon,  and  numerous  cases  cited. 
Converse  a.  McArthur,  17  Barb.,  410. 

5.  The  objection  to  the  jurisdiction  of  the  officer  issuing  attachment 
under  2  Rev.  Stats.,  12,  §  62,  may  be  raised  by  any  person  who  is 
sought  to  be  affected  by  the  appointment  of  trustees  in  the  proceed- 
ings.    Van  Alstyne  a.  Erwine,  1  Kern.,  331. 

6.  The  court  of  last  resort  decides  upon  its  own  jurisdiction.     It  seems 
that  when  the   Court  of  Appeals  has  in  a  decision  asserted  its  want 
of  jurisdiction  over  a  class  of  cases,  and  subsequently  in  a  case  within 
such  class,  has  entertained  jurisdiction,  the  Supreme  Court  may  dis- 
regard the  appellate  judgment  as  being  beyond  the  jurisdiction  of  the 
Court  of  Appeals,  unless  there  had  been  a  professed  re-examination 
of  the  question,  and  the  former  decision  was  recalled.     People  a. 
Clark,  1  Parker's  Cr.  R.,  360. 

7.  Where  the  Court  of  Appeals  have  reversed  a  judgment  of  the  Su- 
preme Court,  but  without  passing  directly  upon  any  objection  to  its 
own  jurisdiction,  that  question  remains  open  for  the  Supreme  Court 
to  consider  before  carrying  into  effect  the  judgment  of  reversal.     Ib. 

8.  When  the  United  States  Courts  had  assumed  jurisdiction  of  a  crimi- 
nal offence,  and  subsequently  the  State  Courts  assumed  jurisdiction 
of  the  same,  upon  habeas  corpus  issued  to  test  the  legality  of  the  arrest 
in  the  latter  court — Held,  that  the  pending  of  the  proceedings  in  the 
United  States  Courts  was  no  ground  for  discharge.     The  People  a. 
The  Sheriff,  lb.,  659.     Compare  The  Republic  of  Mexico  a.  Arran- 
gois,  Ante,  437. 

9.  A  defendant  cannot  appear  in  the  New  York  Superior  Court  under 
protest  to  the  jurisdiction  based  on  a  purely  personal  objection.    Ma- 
haney  a.  Penman,  Ante,  34. 

AMENDMENT,  8  ;  APPEALS,  7  ;  ARREST,  7  ;  ATTACHMENT,  5  ;  CRIM- 
INAL LAW,  tit.  Error,  5  ;  CORPORATION,  4 ;  COUNTY  COURT,  1 ; 
EVIDENCE,  tit.  Judgments  and  Judicial  Proceedings,  3  ;  JUDGMENT, 


NEW-YOKE.  543 


January — July,   1855. 


21;  JUSTICES'  COURT,  tit.  Jurisdiction ;  PLEADING,  25;  SESSIONS; 
SUPERIOR  COURT,  1,  2,  3 ;  SUPERVISORS,  2 ;  SUPREME  COURT  ; 
U.  S.  COURTS. 

JUSTICES'  COURT. 

[COSTS,  12,  13;  EXAMINATION  OF  ASSIGNOR,  7;  PLEADINGS,  9.] 
I.  Jurisdiction. 

1.  Where  a  plaintiff  voluntarily  brings  his  suit  before  the  justice  of  a 
district  in  which  neither  plaintiff  nor  defendant  resides,  and  goes  to 
trial  upon  the  merits,  and  recovers  a  judgment  against  the  defendant, 
though  for  less  than  the  plaintiff's  demand,  (it  in  no  wise  appearing 
on  trial  that  the  parties  do  not  reside  within  such  district,)  the  plain- 
tiff cannot,  by  appeal  from  such  judgment,  require  the  appellate  court 
to  reverse  the  judgment  upon  the  ground  that  the  justice  had  no 
jurisdiction  by  reason  of  such  non-residence.     Fairbanks  a.  Corlies, 
Ante,  150. 

2.  It  seems,  that  a  judgment  so  procured  is  not  as  to  the  plaintiff,  pro- 
cured contrary  to  the  meaning  and  intent  of  the  statute  requiring 
suits  in  the  justices'  courts  to  be  brought  in  the  district  where  one  of 
the  parties  resides  ;  and  if  otherwise,  the  plaintiff  is  so  far  precluded  by 
his  own  voluntary  acts  that  he  cannot  have  a  reversal  on  appeal.    Ib. 

3.  A  justice  of  a  District  Court  in  the  city  of  New  York  can  only  pro- 
ceed by  short  summons  against  a  non-resident  defendant  upon  proof 
before  him  of  the  defendant's  non-residence.     And  it  will  not  be  pre- 
sumed upon  appeal  from  his  judgment  that  the  defendant  was  a  non- 
resident.    Sperry  a.  Major,  1  E.  D.  Smith's  C.  P.  R.,  361. 

4.  But  if  the  defendant  appears  and  pleads  to  the  merits,  the  objection 
is  waived.     The  voluntary  appearance  gives  the  justice  jurisdiction 
though  the  summons  did  not.     Andrews  a.  Thorp,  Ib.,  615. 

5.  A  justice  is  to  judge  from  the  constable's  return,  and  from  that  alone, 
whether  the  process  in  a  suit  has  been  served  in  a  manner  which 
gives  him  jurisdiction  to  proceed.     The  papers  before  him  either 
show  such  service  or  they  do  not.    If  they  do  not  he  cannot  proceed, 
whatever  parol  proof  may  be  offered.     If  they  show  personal  service 
upon  the  proper  person,  the  justice  acquires  jurisdiction  of  the  defend- 
ant for  all  purposes  of  enabling  him  to  render  a  valid  judgment. 
That  his  judgment  may  be  reversed  upon  appeal  or  certiorari,  for 
irregularity  in  the  service,  in  no  wise  affects  his  jurisdiction  where 
the  proper  process  has  been  regularly  issued  and  is  returned  person- 
ally served  by  the  proper  constable.     Therefore,  where  in  an  action 
commenced  against  a  corporation  before  a  justice,  the  summons  was 


544  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 


returned  "  personally  served  on  W.,  a  managing  agent  of  the  defend- 
ants":— Held,  1.  That  this  return  gave  the  justice  jurisdiction.  2. 
That  the  return  could  not  be  contradicted  collaterally  by  proof  that 
W.  was  not  such  managing  agent,  for  the  purpose  of  defeating  the 
judgment ;  the  proper  remedy  of  the  defendants  being  by  appeal  or 
action  against  the  constable  for  a  false  return.  The  New  York  & 
Erie  Rail  Road  Company  a.  Purdy,  18  Barb.,  574. 

6.  The  provision  of  the  statute  (2  Rev.  Stats.,  275,  §  2,)  declaring  that 
no  judge  of  any  court  can  sit  as  such  in  any  cause  in  which  he  is  a 
party,  is  applicable  to  a  justice  of  the  peace.     Baldwin  a.  Me  Arthur, 
17  Barb.,  414. 

7.  In  lien  law  proceedings,  the  Marine  Court  has  power  to  cause  a  ne- 
cessary party  defendant  to  be  brought  in.     Lowber  a.  Childs,  Ante, 
415  ;  but  see  Gates  a.  Ward,  17  Barb.,  424. 

8.  When  a  "  question  of  title  to  lands "  arises  in  an  action  before  a 
justice.     Smith  a.  Riggs,  2  Duer,  622 ;  Hastings  a.  Glenn,  1  E.  D. 
Smith's  G.  P.  R.,  402. 

9.  The  fact  that  a  series  of  payments  have  been  made  upon  a  claim  for 
the  balance  of  which  suit  is  brought,  does  not  render  the  action  a  case 
of  mutual  accounts  within  the  meaning  of  the  statute  defining  the 
jurisdiction  of  the  justices'  courts.      Ward  a.  Ingraham,   1  E.  D. 
Smith's  C.  P.  R.,  538. 

10.  The  provisions  of  the  Code  respecting  the  jurisdiction  of  the  dis- 
trict or  justices'  courts  in  the  city  of  New  York,  have  not  repealed  the 
prohibitory  act  depriving  such  courts  of  jurisdiction  in  actions  brought 
for  the  recovery  of  seamen's  wages.    Collins  a.  Underwood,  Ib.,  318. 

11.  Where  the  trustees  of  a  school  district  submitted  a  claim  for  the 
wages  of  a  school  teacher  employed  by  them  to  the  county  superin- 
tendent of  common  schools,  who  decided  adversely  to  it,  and  the 
teacher  brought  an  action  before  a  justice  of  the  peace  to  recover  the 
amount  of  the  claim, — Held,  that  the  justice  had  jurisdiction,  and  that 
the  action  was  not  barred  by  the  decision  of  the  county  superintend- 
ent.    Reynolds  a.  Mynard,  How.  App.  Cas.,  620. 

II.  Attachment. 

1.  Personal  service  of  attachment  in  suits  commenced  by  attachment 
in  the  N.  Y.  Marine  Court  must  be  made,  if  practicable,  in  order  to 
give  the  court  jurisdiction  to  proceed  in  the  action.     And  if  not  per- 
sonally served,  a  summons  must  be  issued  and  returned,  pursuant  to 
§  38,  ch.  300,  of  Laws  of  1831,  to  authorize  the  Court  to  proceed. 
Taylor  a.  Marker,  1  E.  D.  Smith's  C.  P.  R.,  391. 

2.  Requisites  of  a  bond  to  discharge  an  attachment  upon  property  of  a 


NEW-YORK.  545 


January — July,   1855. 


non-resident,  issued  out  of  the  Marine  Court.     Morange  a.  Edwards, 

lb.,  414. 

"  III.  Summons. 

1.  The  provision  of  the  statute  (2  Rev.  Laws,  371,  §  87),  requiring  a 
summons  issued  from  a  District  Court  to  state  the  nature  of  plain- 
tiff's cause  of  action,  is  in  no  manner  altered  or  repealed  by  the  Code  ; 
nor  is  the  manner  of  stating  such  cause  of  action  governed  by  the 
Code.     But  the  defendant  waives  any  objection  to  the  form  of  the 
summons  in  this  respect,  by  pleading  and  going  to  trial  upon  the 
merits.     Bray  a.  Andreas,  Ib.,  387.     And  see  Cushingham  a.  Phil- 
lips, Ib.,  416. 

IV.  Security. 

2.  Of  the  security  necessary  to  be  given  by  a  non-resident  plaintiff 
suing  by  short  summons  in  the  N.  Y.  Marine  Court.     Jackson  a. 

Whedon,  Ib.,  141. 

V.  Pleadings. 

1.  A  denial  of  knowledge  sufficient  to  form  a  belief  not  allowable  in 
answers  in  justices'  courts.     Dennison  a.  Carnahan,  Ib.,  144. 

2.  Where  the  defendant,  in  a  justice's  court,  did  not  deny  the  plaintiff's 
claim,  but  merely  alleged  a  set-off  which  was  not  proven  on  the  trial, 
— Held,  that  judgment  should  have  been  rendered  for  the  plaintiff. 
Gregory  a.  Trainer,  Ante,  209. 

3.  In  a  justice's  court,  a  party  whose  pleading  has  been  held  to  be  de- 
fective, has  an  absolute  right  to  amend ;  and  it  is  the  imperative  duty 
of  the  justice  to  reserve  that  right  by  the  terms  of  the  order.     (13 
Barb.,  533).     Hillard  a.  Austin,  17  Barb.,  141. 

4.  A  justice  of  the  peace  has  no  power  to  amend  a  complaint,  by  adding 
the  name  of  an  additional  plaintiff.  It  is  doubtful  whether  he  can  amend 
by  striking  out  the  name  of  a  plaintiff.     Gates  a.  Ward,  Ib.,  424. 

5.  A  justice  of  a  district  court  has  no  authority  to  entertain  a  motion  to 
strike  out  a  complaint  or  answer,  either  in  whole  or  in  part.     The 
Mayor,  &c.,  of  the   City  of  New  York  a.  Mason,  Ante,  344.     And 
see  Hillard  a.  Austin,  17  Barb.,  141. 

6.  Nor  can  he  amend  a  pleading  of  his  own  motion.     Lloyd  a.  Fox, 
1  E.  D.  Smith's  G.  P.  R.,  101. 

7.  In  a  justice's  court,  a  plea  in  bar  is  a  waiver  of  a  plea  in  abatement. 
Monteith  a.  Cash,  1   E.  D.  Smith's  C.  P.  R.,  412.     Andrews  a. 
Thorp,  Ib.,  615. 

8.  If  a  complaint  in  a  justice's  or  district  court  is  not  sufficiently  certain 
and  explicit,  the   defendant's  only  remedy  is  by  demurrer.     The 
Mayor,  &c.,  of  the  City  of  New  York  a.  Mason,  Ante,  344. 

35 


546  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

9.  The  rule  should  be  inflexible  in  courts  of  justices  of  the  peace  that 
no  motion  which  is  a  substitute  for  a  demurrer  can  be  entertained 
after  the  issue  of  fact  has  been  joined,  and  the  parties  are  ready  with 
their  witnesses  for  trial.     Hillard  a.  Austin,  17  Barb.,  141. 

10.  Joining  issue  upon  the  merits  after  demurrer  overruled  in  a  justice's 
court,  waives  the  demurrer.     Harper  a.  Leal,  10  How.  Pr.R.,  276. 

ANSWER  21 ;  PLEADING. 
VI.  Default. 

1.  A  justice  is  entitled  to  proceed  with  a  case  immediately  upon  the 
expiration  of  the  time  named  in  the  summons,  and  where,  so  pro- 
ceeding, he  has  rendered  judgment,  he  has  no  power  to  open  it  upon 
the  defendant's  coming  in  immediately  after,  and  asking  to  be  let  in 
to  defend.     Appleby  a.  Strang,  Ante,  143  ;  and  see  Sperry  a.  Major, 
1  K  D.  Smith's  C.  P.  R.,  361. 

2.  The  defendant  in  an  action  in  a  justice's  court  appeared  personally, 
put   in   an    answer,    and   consented   to   an    adjournment.     On   the 
adjourned  day,  an  agent  appeared  in  his  name,  without  stating  that 
he  was  only  authorized  to  appear  for  the  purpose  of  consenting  to  a 
further  adjournment,  proceeded  to  procure  a  subpoena,  to  examine 
witnesses,  and  otherwise  conduct  the  trial,  on  behalf  of  the  defend- 
ant.    Upon  an  application  for  a  new  trial,  under  section  366  of  the 
Code,  (which  permits  a  justice's  judgment  to  be  opened  where  the 
defendant  failed  to  appear,  and  it  is  shown  that  manifest  injustice  has 
been  done,  and  defendant  excuses  his  default,)  the  defendant  put  in 
affidavits  that  he  did  not  appear  on  the  trial  for  the  reason  that  he 
supposed  there  was  a  valid  agreement  between  himself  and  one  of 
the  plaintiffs   for  a  further  adjournment ;  and  that  his  agent  was 
merely  authorized  to  appear  for  him,  for  the  purpose  of  consenting 
to  the  adjournment.     Held — 

1.  That    section    366    does  not  confine  the  failure  to  appear  to   a 
case  where  the  defendant  does  not  answer  on  the  return  of  the  sum- 
mons,  but   extends  to  a  case  of  failure  to  appear  pursuant  to  an 
adjournment. 

2.  That  there  was  not  in  the  present  case  a  failure  to  appear,  inasmuch 
as  the  appearance  and  testimony  of  -the  agent  fully  justified  the  jus- 
tice in  proceeding  with  the  trial,  and  constituted  a  legal  appearance. 

3.  That  if  the  agent  had  disobeyed  the  instructions  of  the  defendant  in 
trying  the  cause,  the  remedy  of  the  latter  was  against  the  agent. 

4.  That  if  defendant  had  honestly  believed  that  an  adjournment  had 
been  agreed  upon,  and  in  consequence  had  been  induced  to  absent 
himself  from  the  trial,  this  would  have  furnished  a  sufficient  excuse 
for  his  default. 


NEW-YORK.  547 


January — July,  1855. 


5.  That  a  bare  affidavit  of  merits  is  not  sufficient  in  these  cases  to  show 
that  manifest  injustice  has  been  done ;  but  facts  and  not  conclusions 
must  be  stated,  to  enable  the  court  to  see  that  such  injustice  exists. 

6.  That  in  the  present  case  the  affidavits  read  on  the  part  of  the  defend- 
ant were   not   sufficiently  explicit   in    this    respect.     Armstrong  a. 
Craig,  18  Barb.  387.     As  to  the  first  point  held,  see  contra  Mix  a. 
White,  1  E.  D.  Smith's    G.  P.  R.,  614.     As  to   the  second   point 

•held,  see  also  Bunker  a.  Latson,  1  E,  D.  Smith's  C.  P. H.,  410. 

3.  To  enable  the  court  to  open  a  justice's  judgment,  under  section  366 
of  the  Code,  the  defendant  must  not  only  show  a  default  to  appear, 
and  excuse  it,  but  must  show  that  manifest  injustice  has  been  done. 
Mix  a.  White,  1  E.  D.  Smith's  C.  P.  R.,  614. 

4.  Defendant's  attorney  having  suffered  default  in  a  district  court,  by 
being  delayed  in  arriving  at  court  by  circumstances  liable  to  occur 
without  his  fault,  he  being  under  the  misapprehension  that  no  defaults 
were  taken  until  half  an  hour  after  the  return  hour  of  the  summons. 
Held,  that  the  default  was  excusable.    Seymour  a.  Elmer,  Ante,  412. 

5.  The  only  witness  for  plaintiff  being  the  assignor  of  the  claim  sued 
on,  an  affidavit  by  the  defendant  that  injustice  was  done  to  him — Held, 
under  certain  circumstances,  to  be  sufficient  upon  that  point,  on  a  mo- 
tion to  open  the  judgment.     Ib. 

VII.  Adjournment. 

1.  A  second  adjournment  of  a  cause  by  a  justice  of  the  peace,  in  the 
absence  of  the  parties  and  their  attorneys,  is  void,  notwithstanding  it 
is  made  upon  the  written  consent  of  both  parties.     The  irregularity 
may  be  waived  by  the  parties  appearing  and  proceeding  to  trial 
without  objection,  pursuant  to  the  adjournment.     Weeks  a.  Lyon,  18 
B  rb.,  530. 

2.  The  refusal  of  the  justice  of  a  district  court  to  suspend  a  trial,  after 
witnesses  have  been  examined,  for  the  purpose  of  enabling  one  of 
plaintiff's  witnesses  to  leave  the  court  to  search  for  papers  mentioned 
in  a  subpoena  duces  tecum,  served  on   such  witness  by  the  plaintiff 
shortly  before  the  witness  was  sworn,  is  no  ground  for  reversing  the 
judgment.     Fairbanks  a.  Corlies,  A.  te,  150. 

VIII.   Trial. 

1.  Where  a  defendant  is  in  good  faith  brought  before  a  justice  by  sum- 
mon?, and  there  admits  the  indebtedness  specified  in  the  plaintiffs 
complaint,  judgment  may  be  rendered  against  him  as  is  usual  in  a 
suit ;  and  no  affidavit,  or  proof,  or  confession  in  writing  is  necessary. 
Gates  a.  Ward,  \  1  B  rb.,  424. 

2.  The  time  and  mode  of  demanding  a  jury  in  a  District  Court  in  the  city 
of  New  York.    Shannon  a.  Kenned.,  1   E.  D.  Smith's  C.  P.  R.,  346. 


548  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 


3.  The  practice  in  the  district  courts  of  the  city  of  New  York  in  respect 
to  summoning,  empunneling,  and  challenging  jurors,  defined.     The 
Mayor,  &c.  of  the  City  of  New  York  a.  Mason,  Ante,  344. 

4.  In  a  District  Court  the  opening  of  a  case  for  further  testimony,  even 
after  the  parties  have  rested,  but  prior  to  the  final  submission,  is  in 
the  discretion  of  the  justice,  provided  the  parties  with  their  witnesses 
are  all  present,  and  it  does  not  appeal-  that  the  opposing  party  is  pre- 
judiced.    Harpell  a.  Curtis,  1  E.  D.  Smith's   C.  P.  R.,  78 ;  and  see 
Breidert  a.  Vincent.   lb.,  542. 

5.  The  verdict  of  a  jury  in  a  justice's  court  upon  a  question  of  fact  is 
conclusive,  notwithstanding  that  it  may  appear  to  be  against  the 
weight  of  evidence.     It  is  only  when  the  facts  are  undisputed  or  the 
evidence  unconflicting  and  free  from  reasonable  doubt  that  it  can  be 
set  aside  as  contrary  to  evidence.     Bennett  a.  Scutt,  18  Barb.,  347  ; 
Easton  a.  Smith,  1  E.  D.  Smith's  C.  P.  It.,  318. 

6.  Where  the  evidence  adduced  upon  a  trial  before  the  justice  of  a  dis- 
trict court  is  conflicting,  the  finding  of  the  justice  will  be  deemed 
conclusive  upon  the  facts.     Fairbanks  a.  Corlies,  Ante,  150. 

7.  The  N.  Y.  Common  Pleas  will  not  reverse  the  decision  of  a  justice 
of  the  marine  or  district  court  upon  a  question  of  fact,  unless  the 
decision  is  against  the  weight  of  evidence  so  clearly  that  if  it  wen; 
the  verdict  of  a  jury  it  would  be  reversed.     Heim  a.  Wolf,  1  E.  D. 
Smith's  G.  P.  jR.,  70.    Harpell  a.  Curtis,  lb.,  78.    Decker  a.  Jaques, 

lb.,  80. 

EXAMINATION  OF  ASSIGNOR,  7. 

IX.  Execution. 

1.  Under  2  Rev.  Stats.,  225,  §  1,  i*  justice  of  the  peace  may  not  issue 
an  execution  after  the  two  years  have  expired ;  but  he  may  renew 
an  unsatisfied  execution  by  indorsement,  from  time  to  time,  beyond 
that  limit.     Morse  a.  Goold,  1  Kern.,  281. 
X.  Appeal. 

A  defect  in  a  notice  of  appeal  in  an  action  in  a  justice's  court  will  not 
be  considered  on  the  hearing  of  the  appeal.  The  respondent's  reme- 
dy is  by  motion  to  dismiss  the  appeal.  (2  Sand/.,  227.)  Nye  a. 
Ayres,  1  E.  D.  Smith's  G.  P.  R.,  532. 

LEGATEE. 

Certain  errors  in  the  proceedings  in  a  suit  brought  against  legatees  or 
devisees  to  compel  them  to  refund,  on  the  ground  that  the  personal 
estate  of  their  testator  had  proved  insufficient  for  the  payment  of  his 
debts — pointed  out.  Wambaugh  a.  Gates,  1  How.  App.  Cus.,  247. 


NEW-YORK.  549 


January — July,   1855. 


LICENSE. 

The  fact  that  the  commissioners  of  excise  for  a  particular  ward  or  dis- 
trict refuse  to  license  any  persons  to  sell  spirituous  liquors,  does  not 
justify  any  person  in  selling  them  without  a  license.  The  Mayor, 
&c.,  of  the  City  of  New  York  a.  Mason,  Ante.,  344. 

EVIDENCE,  tit.  Burden  of  proof,  3;  INJUNCTION,  11. 

LIBEL. 
DEFAMATION. 

LIEN. 

ATTORNEY,  3,  4 ;  MECHANIC'S  LIEN. 

LIMITATION  OF  ACTIONS. 

1.  Under  the  provisions  of  section  100  of  the  Code,  respecting  the  limi- 
tation of  actions,  the  aggregate  of  the  debtor's  absences  from  the  State 
and  not  the  first  one  only,  is  to  be  deducted.     Cole  a.  Jessup,  10 
How.  Pr.  JR.,  515. 

2.  Where  one  of  several  partners,  who  while  out  of  the  State  contracted 
a  debt  to  creditors  within  the  State,  came  here  and  procured  a  dis- 
charge under  the  bankrupt  act  of  1841,  and  afterwards,  and  more 
than  six  years  after  the  contracting  of  the  debt,  his  co-partner  came 
within  the  State,  and  was  sued  upon  the  indebtedness. — Held,  that 
the  statute  was  no  bar  to  the  action.     Davis  «.  Kinney,  Ante,  440. 

3.  To  take  a  case  out  of  the  statute  of  limitations,  there  must  be  an  ex- 
press promise  or  an  admission  of  a  subsisting  debt,  and  a  willingness 
to  pay,  so  clear  that  a  promise  may  be  implied.    The  fact  of  a  partial 
payment  is  only  reliable  as  evidence  of  a  promise  or  a  fact  from  which 
a  promise  may  be  implied.    Bloodgood  «.  Bruen,  4  Seld.,  362.    Shoe- 
maker a.  Benedict,  1  Kern.,  176. 

4.  Subsequent  promise  or  partial  payment  by  one  joint  debtor,  unless 
authorized  by  his  co-debtors,  does  not  take  the  debt  out  of  the  statute 
of  limitations  as  to  them.     Their  defence  remains  good  whether  his 
acknowledgment  was  made  before  the  statute  attached  to  the  original 
debt  or  afterwards.     The  action  must  be  upon  the  new  promise  ;  and 
a  promise  by  one  unauthorized  by  the  others  is  not  a  cause  of  action 
except  against  the  one  making  it.     Shoemaker  a.  Benedict,  1  Kern., 
176.     Bloodgood  a.  Bruen,  4  Seld.,  362. 

5.  The  provision  of  the  statute  of  limitations  which  requires  that  all 
actions  against  sheriffs  upon  any  liability  incurred  by  the  doing  of 
any  act  in  their  official  capacity,  shall  be  brought  within  three  years, 


550  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

applies  to  the  case  where  a  sheriff  seizes  and  sells  the  property  of  B. 
upon  an  execution  against  A.     Dennison  a.  Plumb,  18  Barb.,  89. 
PLEADING,  23,  24. 

LUNATICS  AND  HABITUAL  DRUNKARDS. 

1.  The  power  to  take  the  persons  and  property  of  lunatics  and  habitual 
drunkards  into  judicial  custody  considered.  Brown's  Case,  Ante,  108. 

2.  Inquisitions  of  lunacy  and  of  habitual  drunkenness  are  analogous  to 
a  proceeding  in  rem.     They  are  public  and  notorious,  and  are  con- 
clusively presumed  to  be  known  to  those  who  subsequently  deal  with 
the  subjects  of  them.     Wadsworth  a.  Sharpsteen,  4  Seld.,  388. 

SUPERIOR  COURT,  3. 

MANDAMUS. 

1.  Mandamus  will  only  lie  to  enforce  a  clear  legal  right,  and  when 
a  remedy  at  law  is  wanting  or  doubtful.     People  a.  Chenango,  1 
Kern.,  563. 

2.  A  mandamus  will  not  be  granted  to  compel  a  moneyed  corporation  to 
make  transfers  of  stock ; — that  writ  is  only  allowed  for  the  purpose 
of  enforcing  a  public  duty  owed  to  the  State  in  which  it  issues.    The 
People  a.  The  Parker  Vein  Coal  Company,  Ante,  128.     For  opin- 
ion on  the  merits  by  MORRIS,  J.,  see  S.  C.,  10  How.  Pr.  R.,  543. 

3.  Mandamus  will  lie  to  compel  the  supervisors  to  meet  and  issue  war- 
rants for  the  collection  of  military  commutation,  which  they  refused 
to  issue  at  their  annual  meeting.     People  a.  Chenango,  4  Seld.,  317. 

4.  Mandamus  will  lie  to  compel  a  board  of  trustees  of  a  school  district 
to  issue  a  warrant,  upon  order  of  the  supervisors,  for  the  collection 
of  a  claim  of  an  officer  of  the  district  for  costs  incurred  by  him.    Peo- 
ple a.  Green,  10  How.  Pr.  R.,  468. 

SUPERVISORS,  1. 

MARINE  COURT. 
JUSTICES'  COURT. 

MARRIED  WOMEN. 

Where  a  married  woman  conveys  her  real  estate  acquired  since  the  act 
of  April  7,  1848,  the  deed  may  be  drawn  in  the  same  form,  and  exe- 
cuted and  acknowledged  in  the  same  manner,  as  if  she  were  unmar- 
ried ;  and  no  private  examination  is  necessary.  Blood  a.  Humph- 
rey, 17  JJarb.,  660. 

COSTS,  10;  JUDGMENT,  13;  PARTIES,  18,  19. 


NEW-YORK.  551 


January — July,  1855. 


MECHANICS'  LIEN  LAW  PRACTICE. 

Application  of  lien  law  to  contracts  made  before  its  passage  considered. 
Brien  a.  Clay,  1  E.  D.  Smith's  G.  P.  R.,  649  ;  McBride  a.  Crawford, 
Jb.,  658 ;  Sullivan  a.  Brewster,  lb.,  681 ;  Miller  a.  Moore,  Ib.,  739. 

Lien  law  not  applicable  to  work  done  before  its  passage.  Donaldson  a. 
O  Connor,  Ib.,  695. 

Requisites  of  the  notice  creating  the  lien.  Beals  a.  Congregation  B'nai 
Jeshurun,  Ib.,  654. 

It  must  be  verified  in  the  same  form  as  a  pleading.  Laws  of  1855, 
760,  ch.  404. 

Time  of  filing  the  notice  of  lien.  Donaldson  a.  O'Connor,  1  E.  D. 
Smith's  G.  P.  R.,  695. 

Plaintiffs'  recovery  limited  to  the  amount  claimed  in  the  notice.  Pro- 
tective Union  a.  Nixon,  Ib.,  671. 

Requisites  of  notice  to  defendant.     Tinker  a.  Geraghty,  Ib.,  687. 

Requisites  of  complaint.  Doughty  a.  Devlin,  Ib.,  625 ;  Dixon  a.  La 
Farge,  Ib.,  722;  Broderick  a.  Boyle,  Ante,  319  ;  Quin  a.  McOliff, 
Ante,  322  ;  Foster  a.  Poillon,  Ante,  321. 

Demurrer  lies  to  complaint.  Doughty  a  Devlin,  1  E.  D.  Smith's  G. 
P.  R.,  625. 

Who  are  proper  parties  defendant.  Kaylor  a.  O'Connor,  Ib.,  672 ; 
Sullivan  a.  Decker,  Ib.,  699  ;  Foster  a.  Skidmore,  Ib.,  719  ;  Lowber 
a.  Childs,  Ante,  415. 

Contractors  are  proper  parties.     Laws  of  1855,  760,  ch.  404. 

Proper  mode  of  bringing  in  new  parties  when  necessary.  Foster  a. 
Skidmore,  1  E.  D.  Smith's  G.  P.R.,11$;  and  see  Lowber  a.  Childs, 
Ante,  415. 

Priority  of  liens  considered.  Kaylor  a.  O'Connor,  1  E.  D.  Smith's  C. 
P.  R.,  672. 

Notice  must  be  given  to  other  lienors,  &c.     Laws  of  1855,  760,  ch.  404. 

Eifect  of  prior  liens  as  defence  to  the  owner.  Lehretter  a.  Koffman,  1 
E.  D.  Smith's  G.  P.  R.,  664. 

Effect  of  contract  between  contractor  and  owner  upon  the  rights  of  the 
laborer.  Doughty  a.  Devlin,  Ib.,  625  ;  Cronk  a.  Whittaker,  Ib.,  647  ; 
Kennedy  a.  Paine,  Ib.,  651 ;  McBride  a.  Crawford,  Ib.,  658  ;  Haupt- 
man  a.  Halsey,  Ib.,  668 ;  Sullivan  a.  Brewster,  Ib.,  681 ;  Tinker  a. 
Geraghty,  Ib.,  687 ;  Allen  a.  Carman,  Ib.,  692 ;  Spalding  a.  King, 
Ib.,  Ill ;  Dixon  a.  La  Farge,  Ib.,  722 ;  Gay  a.  Brown,  Ib.,  725 ; 
Pendleburg  a.  Meade,  Ib.,  728 ;  Miller  a.  Moore,  Ib.,  739 ;  Broder- 
ick a.  Boyle,  Ante,  319;  Quin  a.  McOliff,  Ante,  322;  Linn  a. 
O'Hara,  Ante,  360. 


552  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

Proceedings  under  the  lien  law,  proceedings  in  rem  not  in  personam. 

Cronkright  a.  Thomson,  1  E.  D.  Smith's  G.  P.  R.,  661.     Gridley  a. 

Rowland,  Ib.  670. 

Set  off.     Owens  a.  Ackerson,  Ib.,  691.     Gourdier  a.  Thorp.  Ib.,  697. 
Bill  of  interpleader  denied  under  special  circumstances.     Chamberlain 

a.  O'Connor,  Ib.,  665. 
Subcontractor  competent  witness  in  an  action  by  a  laborer  against  owner. 

Cusack  a.  Tomlinson,  Ib.,  716. 
Whether  proceedings  under  the  lien  law  bar  a  civil  action  for  the  debt, 

Query?     Westervelta.  Levy,  2  Duer,  354.  Ogden  a.  Bodle,  Ib.,  611. 

Gridley  a.  Rowland,  1  E.  D.  Smith's  O.  P.  R.,  670. 
Nonsuit  a  bar  to  a  subsequent  proceeding,     Sullivan  a.  Brewster,  1  E. 

D.  Smith's  O.  P.  R.,  681. 
Writ  of  inquiry  may  issue,  or  reference  may  be  taken  in  the  Common 

Pleas  to  assess  damages,  &c.,  Laws  of  1855,  760,  ch.  404. 
Form  of  judgment.  Doughty  a.  Devlin,  1  E.  D.  Smith's  O.  P.  R.,  625. 

Laws  0/1855,  760,  ch.  404. 
Sales  shall  be  subject  to  prior  liens  unless  the  claimants  of  such  liens 

are  made  parties.     Laws  0/1855,  760,  ch.  404. 

JUSTICE'S  COURT,  tit.  Jurisdiction,  7. 

MORTGAGE. 

1.  In  an  action  for  the  foreclosure  of  a  mortgage,  under  the  statute,  the 
court  are  not  authorized  to  make  a  decree  of  sale,  except  for  the  pur- 
pose of  satisfying  the  mortgage  and  costs.     Mechanics'  and  Traders' 
Savings  Institution  a.  Roberts,  Ante,  381. 

2.  A  sale  will  not  be  ordered  for  the  purpose  of  satisfying  a  junior 
mortgage,  the  mortgagee  in  which,  has  been  joined  as  defendant,  Ib. 

3.  An  action  brought  against  the  holder  of  a  mortgage  to  declare  void 
and  cancel  the  mortgage,  is  no  ground  for  injunction  restraining  the 
prosecution  of  a  subsequent  foreclosure  suit  brought  by  the  mortgagee 
upon  the  mortgage.     Tarrant  a.  Quackenbos,  10  How.  Pr.  R.,  244. 

4.  In  an  action  to  foreclose  a  mortgage,  under  the  foreclosure  act  of 
1840,  a  notice  of  Lis  pendens,  omitting  to  state  in  what  county  the 
mortgage  is  recorded,  may  be  regarded  as  a  sufficient  compliance ; 
and  although  it  might  be  good  ground  to  open  the  judgment  for  irre- 
gularity, upon  proper  motion,  it  does  not  render  the  proceedings  in- 
valid.    The  decree   cannot  be   objected  to  in  a  collateral  action. 
Potter  a.  Rowland,  4  Seld.,  448. 

AMENDMENT,  7,  8;   CHATTEL  MORTGAGE;  CORPORATION,  3;  EVI- 
DENCE, tit.  Parol  Proof  to  explain,  fyc.,  1 ;  Parties,  11. 


NEW-YORK.  553 


January — July,   1855. 


MOTIONS  AND  ORDERS. 

1.  A  motion  to  dismiss  an  appeal  pending  at  General  term,  will  not  be 
entertained  at  Special  term.     Harris  a.  Clark,  10  How.  Pr.  R.,  415. 

2.  Application  to  correct  the  form  of  a  judgment  of  the  general  term 
may  be  made  at  special  term.     De  Agreda  a.  Mantel,  Ante,  130. 

3.  Motions  at  chambers  not  heard  on  the  day  for  which  they  are  noticed 
in  consequence  of  the  inability  of  the  court  to  hear  the  same,  stand 
over  as  a  matter  of  course  until  the  next  day,  unless  a  different  dis- 
position be  ordered  or  consented  to.     Mathis  a.  Vail,  10  How.  Pr. 
R.,  458. 

4.  An  order  made  by  one  justice  at  special  term,  held,  by  the  general 
term,  to  have  been  properly  modified  by  another  justice  at  special 
term.     Selden  a.  Christophers,  Ante,  272. 

5.  The  fair  import  of  section  401  of  the  Code  is,  that  no  motion  shall 
be  made  in  the  First  Judicial  District  in  a  cause  in  which  the  venue 
is  laid  in  another  district.     The  Canal  Bank  a.  Harris,  Ante,  192. 

6.  An  order  granted  ex  parte  at  special  term,  in  the  First  District, 
staying  proceedings  in  an  action  triable  in  another  district,  is  void. 
The  same  is  true  of  an  order  so  made  at  general  term  after  argu- 
ment.    If  made  by  a  judge  at  chambers  it  might  be  different.     But 
where  such  an  order  was  granted  staying  proceedings  under  a  pre- 
vious order,  in  consequence  of  which  the  defendant  disobeyed  a  pre- 
vious order,  a  motion  for  an  attachment  was  refused.     Harris  a. 
Clark,  10  How.,  Pr.  R.,  415. 

7.  An  order  staying  proceedings  granted  at  general  term  in  one  district, 
upon  an  appeal  which  the  party  moved  on  in  violation  of  an  order 
staying  proceedings,  granted  at  special  term  in  another  district,  is 
irregular  and  will  be  set  aside  as  such.     Ib. 

8.  Where  the  defendant  moves  to  dissolve  an  injunction  upon  affidavits 
on  his  part  as  distinguished  from  the  original  papers  on  the  part  of 
the  plaintiff,  the  plaintiff  may  introduce  new  affidavits  to  oppose  the 
motion,  and  sustain  the  injunction.     A  verified  answer  is  an  affidavit 
within  the  meaning  of  this  rule.     Hollins  a.  Mallard,  Ib.,  540. 

9.  Verified  complaint  allowed  to  be  read  in  support  of  defective  affida- 
vits on  which  an  order  of  arrest  had  been  obtained.     Brady  a.  Bis- 
sell,  Ante,  76. 

10.  The  decision  of  a  judge  allowing  an  application  for  judgment  upon 
an  answer  as  frivolous,  is  not  a  judgment  but  an  order  that  plaintiff 
is  entitled  to  judgment ;  and  it  is  appealable  under  section  349  of  the 
Code.    Western  R.  R.  Corporation  a.  Kortright,  10  How.  Pr.  R.,  457. 

11.  Where  an  application  for  an  order  of  maintenance  was  in  fact  made 


554  ABBOTTS'  PRACTICE  DIGEST. 

Reports   and  Statutes. 

to  and  granted  by,  the  Court  of  Sessions  of  St.  Lawrence  County, 
but  the  order  as  entered  purported  to  be  made  by  the  "  county  court 
of  sessions,''' — Held,  in  an  action  upon  the  order,  that  the  word  county 
prefixed  to  the  description  of  the  court  might  be  treated  as  mere 
surplusage ;  no  objection  to  the  error  having  been  made  at  the  time 
when  the  order  was  entered.  (5  How.  Pr.  R.,  3.)  Baldwin  a.  Mc- 
Arthur,  17  Barb.,  414. 

12.  An  order  extending  the  time  to  answer  founded  upon  an  affidavit 
stating  the  name  of  defendants'  attorney  and  his  absence  from  the 
city,  was  obtained  by  defendant,  and  copies  of  the  order  and  affidavit 
were  served  upon  the  plaintiff's  attorney, — Held,  equivalent  to  a 
formal  notice  of  appearance.     Quin  a.  Tilton,  2  Duer,  648. 

13.  A  motion  to  strike  out  portions  of  a  complaint  is  embraced  in  a  stip- 
ulation extending  the  defendant's  time  to  answer,  and  to  make  such 
application  as  he  should  be  advised.    Lackey  a.  Vanderbilt,  10  How. 
Pr.  R.,  155. 

ANSWER,  1,  7,  16;  APPEAL,  2,  3,  5,  12 ;  ARREST,  6;  ATTACHMENT, 
3 ;  COMPLAINT,  4,  7,  18,  31 ;  COSTS,  14,  15,  17,  18,  19 ;  COURT,  2, 
3,  4,  5;  EXCEPTIONS,  7;  JUDGMENT,  12,  13,  14,  17,  19;  JUSTICES' 
COURT,  tit.  Pleading,  5,  9;  PLEADING,  17,  18,  26;  RECEIVER,  2; 
REFERENCE,  4 ;  SATISFACTION  OF  PART  OF  PLAINTIFFS'  CLAIM  ; 
SERVICE  AND  PROOF  OF,  8 ;  STAY  OF  PROCEEDINGS,  3 ;  SUPPLE- 
MENTARY PROCEEDINGS,  1. 

NOTICE  OF  PROTEST. 

1.  What  notice  of  protest  is  sufficient.     Youngs  a.  Lee,  18  Barb.,  187; 
Otsego  County  Bank  a.  Warren,  18  Burb.,  290 ;  Pierson  a.  Boyd,  2 
Duer,  33.     And  see  Coyle  a.  Smith,  1  E.  D.  Smith's  C.  P.  R.,  400. 

2.  Any  private  citizen  may,  if  authorized  by  the  holder,  demand  pay- 
ment of  a  note,  and  give  notice  of  its  non-payment  with  the  same 
effect  as  if  done  by  a  notary.     Cole  a.  Jessup,  10  How.  Pr.  R.,  515. 

EVIDENCE,  tit.  Public  Documents,  2  ;  tit.  Private  Writings,  2. 

OATH. 

An  oath  irregularly  administered  by  mistake,  e.  g.  upon  Watts'  Psalms 
and  Hymns,  instead  of  upon  the  gospels,  is  a  valid  oath.  If  the  party 
taking  it  makes  no  objection,  at  the  time,  he  is  deemed  to  have 
assented  to  the  particular  form  adopted,  and  is  liable  to  perjury,  as  if 
the  oath  had  been  regularly  administered.  The  People  a.  Cook,  4 

Seld.,  67. 

TRIAL,  Tit.  Examination  of  Witness,  5. 


NEW-YORK.  555 


January — July,    1855. 


OFFER  TO  ALLOW  JUDGMENT. 

AMENDMENT,  3;  COSTS,  11 ;  JUDGMENT,  10;  SATISFACTION  OF  PART 
OF  PLAINTIFF'S  CLAIM,  1. 

OYER  AND  TERMINER. 

1.  The  Court  of  Oyer  and  Terminer  of  the  city  and  county  of  New 
York  may  send  indictments  to  the  Court  of  General  Sessions  for 
trial.     Laws  of  1855,  613,    Gh.  337. 

2.  The  Court  of  Oyer  and  Terminer  has  power  to  grant  a  new  trial  on 
the  merits  in  a  case  of  felony.     People  a.  Morrison,  1  Parker's  Or. 
H.,  625.     And  see  The  People  a.  The  Court  of  Sessions  of  Wayne 
County,  1  Parker's  Or.  Jt.,  369.. 

CRIMINAL  LAW,  tit.  Recognizance  and  Bail,  5. 

PARTIES. 

1.  Whether  the  title  of  an  assignee  of  a  chose  in  action  be  legal  or 
equitable,  if  he  has  the  whole  interest  he  may  sue  in  his  own  name. 
Hastings  a.  McKinley,  1  E.  D.  Smith's  G.  P.  R.,  273. 

2.  The  old  rule  that  a  bond  must  be  sued  in  the  name  of  the  obligee  is 
abrogated  by  the  Code ;  the  suit  must  now  be  in  the  name  of  the  real 
party  in  interest.     And  where  an  administration  bond  is  assigned  to 
a  creditor  of  the  estate  to  be  prosecuted,  such  creditor  is  the  real  and 
only  party  in  interest,  and  should  sue  in  his  own  name.     It  would  be 
useless  to  sue  in  the  name  of  the  people  on  the  relation  of  such  cred- 
itor.    Baggott  a.  Boulger,  2  Duer,  160. 

3.  The  assignee  of  a  life  policy,  in  trust  for  the  wife  of  the  assured, 
may,  upon  the  death  of  the  latter,  sue  in  his  own  name,  as  trustee  of 
an  express  trust,  for  the  sum  insured.    Neither  the  wife  nor  the  per- 
sonal representatives  of  the  assured  are  necessary  parties.     St.  John 
a.  The  American  Mutual  Life  Insurance  Company.    lb.,  419. 

4.  An  action  for  conversion  will -lie  at  suit  of  a  factor  who  has  stored 
property  consigned  to  him,  with  a  third  party,  from  whose  possession 
it  has  been  taken  by  a  wrong  doer.     Gorum  a.  Carey,  Ante,  285. 

5.  An  auctioneer  who  in  his  own  name  sells  goods  for  a  third  person,  is 
the  trustee  of  an  express  trust  within  the  meaning  of  section  113  of 
the  Code,  and  as  such  may  sue  upon  the  contract  of  sale  without  an 
assignment  of  the  claim.     Bogart  a.  O'Regan,  1  E.  D.  Smith's  G.  P. 
R.,  590. 

6.  The  mere  holder  of  a  promissory  note,  who  has  no  interest  in  it 
cannot  now  maintain  an  action  upon  it.     Such  action  can  only  be 
prosecuted  in  the  name  of  the  owner  of  the  work,  or  the  real  party 
in  interest,     Parker  a.  Totten,  10  How.  Pr.  R.,  233. 


556  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes 


7.  Although  the  captain  of  a  vessel  has  made  a  verbal  arrangement 
with  the  owner  for  purchase  of  an  interest,  yet  if  he  has  not  taken 
any  conveyance  he  is  not  a  necessary  co-plaintiff  in  an  action  by  the 
owner  upon  a  charter  party.     Ward  a.  Whitney,  4  Seld.,  442. 

8.  Tenants  in  common  may  properly  join  in  an  action  for  use  and  occu- 
pation without  having  a  joint  demise.     (Broom  on  Parties,  27,  §  32 ; 
13  Johnson,  286;    6  lb.,  108;  8  lb.,  151;    15  lb.,  482;   8  Cow., 
308 ;  5  Hill,  56 ;  6  Hill,  634.)     Porter  a.  Bleiler,  17  R,rb.,  149. 

9.  The  commissioners  of  highways  of  two  towns  cannot  unite  as  plain- 
tiffs in  an  action  to  recover  a  penalty  or  forfeiture,  for  an  encroach- 
ment upon  a  highway,  even  although  the  highway  were  upon  a  line 
between  the  two  towns.     Bradley  a.  Blair,  lb.  480.     Compare  Pal- 
mer a.  The  Fort  Plain  &  Cooperstown  Plank  Road  Co.,  I  Kern.,  376. 

10.  The  attorney  general  is  a  necessary  party  to  a  suit  which  seeks 
relief  against  an  act  of  a  municipal  corporation,  which  works  a  pub- 
lic injury  to  the  whole  community  over  which  the  corporate  jurisdic- 
tion extends.     Davis  a.  The  Mayor,  &c.  of  N.  Y.,  2  Duer,  663. 

11.  In  an  action  for  specific  performance  of  a  contract  of  lands,  prior 
mortgagees  are  not  proper  parties  where  it  does  not  appear  that  they 
are  about  to  foreclose.     Chapman  a.  Draper,  10  How.  Pr.  R.,  367. 

12.  Where  there  is  a  joint  contract  or  liability  and  one  party  is  dead, 
the  other  only  should  be  sued ;  but  where  the  contract  or  liability  is 
joint  and  several,  the  representatives  of  the  deceased  are  necessary 
parties.     De  Agreda  a.  Mantel,  Ante,  130. 

13.  The  rule,  formerly  well  settled,  that  the  representatives  of  a  de- 
ceased member  of  a  firm  cannot  be  sued  for  a  debt  due  from  the 
partnership,  unless  insolvency  of  the  surviving  members,  or  some 
other  ground  of  relief  against  them  be  shown, — has  not  been  changed 
by  the  Code.     Voorhies  a.  Baxter,  Ante,  43 ;  Higgins  a.  Freeman, 
2  Duer,  650. 

14.  But  the  misjoinder  cannot  be  set  up  in  the  answer  of  the  repre- 
sentatives ;  but  they  must  point  out  the  defect,  either  by  demurrer 
or  by  objecting  at  the  trial  that  the  complaint  shows  no  cause  of 
action  as  against  them.     Higgins  a.  Freeman,  lb. 

15.  The  several  modes  by  which  the  representatives  of  a  deceased 
party  to  a  suit  may  be,  when  necessary,  made  parties  to  the  suit, — 
pointed  out.     De  Agreda  a.  Mantel,  Ante,  130. 

16.  The  only  exception  to  the  rule  that  persons  only  severally  liable 
cannot  be  joined  in  the  same  action  as  defendants,  is  that  created  by 
section  120,  relating  to  persons  severally  liable  upon  the  same  obli- 
gation or  instrument.     Therefore  a  principal  debtor  and  his  guaran- 


NEW-YORK.  557 


January — July,   1855. 


tor,  sought  to  be  held  upon  a  collateral  undertaking,  cannot  be  sued 
together.     Le  Roy  a.  Shaw,  2  Duer,  626. 

17.  The  objection  that  there  is  a  defect  of  parties  plaintiff,  or  that  the 
.plaintiff  has  not  legal  capacity  to  sue,  is  waived  unless  taken  by  de- 
murrer or  answer.    Belshaw  a.  Colie,  1  E.  D.  Smith's  G.  P.  R.,  213; 
Hastings  a.  McKinley,  Ib.,  273. 

18.  In  an  action  to  recover  damages  for  slanderous  words  spoken  of  a 
married  woman,  if  the  words  are  actionable  per  se,  the  husband  is  a 
necessary  party  as  plaintiff.     Where  the  words  are  actionable  only 
by  reason  of  special  damages,  the  husband  must  sue  alone.     Klein 
a.  Hentz,  2  Duer,  633. 

19.  Whenever  a  married  woman  sues  her  husband,  she  must  appear  by 
next  friend  ;  whether  the  action  be  for  an  absolute  divorce  or  for  any 
other  relief.     Thomas  a.  Thomas,  18  Barb.,  149. 

20.  An  infant  may  maintain  an  action  for  use  and  occupation,  suing  by 
next  friend,  although  he  has  a  general  guardian.     Porter  a.  Bleiler, 
17  Barb.,  149. 

ANSWER,  23 ;  COMPLAINT,  23,  28,  32  ;  DEMURRER,  1 ;  EXAMINATION 
OF  PARTIES  ;  GUARDIAN  AD  LITEM,  2 ;  JURISDICTION,  4 ;  JUS- 
TICES' COURT,  tit.  Jurisdiction,  6;  PLEADING,  13;  WITNESS,  &'£. 
Competency,  3. 

PARTITION. 

In  an  action  for  the  partition  of  real  estate,  an  order  for  sale,  though 
made  without  a  reference  as  to  general  liens,  and  without  any  adver- 
tisement for  them,  is  not  void ;  but  the  parties  who  choose  to  omit 
this  ordinary  advertisement  should  produce  at  their  own  cost,  for  the 
purchaser,  regular  searches  for  all  judgments  and  decrees  for  at  least 
twenty  years.  A  sale  by  the  court  in  guch  a  suit,  brought  by  heirs 
for  the  partition  of  their  ancestor's  estate,  does  not  supersede  the 
power  of  the  surrogate  to  sell  the  same  property  to  satisfy  the  debts 
of  the  deceased.  A  purchaser  at  such  a  sale  is  not  bound  to  rely 
upon  the  affidavit  of  the  administrator  that  there  are  no  such  debts. 
Hall  a.  Partridge,  10  How.  Pr.  B.,  188. 

PARTNERSHIP. 

1.  A  partnership  may  exist  between  two  firms.     Smith  a.  Wright 
Ante,  243. 

2.  Agreement  for  the  dissolution  of  a  partnership  reformed  in  equity 
upon  the  ground  of  mistake,  by  striking  out  one  of  its  provisions. 
Le  Roy  a.  Lowber,  Ante,  67. 


558  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Salutes. 

3.  No  power  is  implied  as  within  the  scope  of  partnership  authority, 
unless  such  as  the  partners  can  be  presumed  to  have  intended  to 
grant  each  other.     Everson  a.  Gehrman,  Ante,  167. 

4.  A  surviving  partner  has  the  power  to  assign  any  chose  in  action  ; 
e.  g.  a  bond  and  mortgage  belonging  to  the  late  firm.     Pinckney  a. 
Wallace,  Ante,  82. 

5.  Of  the  modes  of  proceeding  in  an  action  by  a  member  of  a  voluntary 
association  to  dissolve  the  partnership.     Kapp  a.  Barthan.     1  E.  D. 
Smith's  C.  P.  R-,  622. 

ANSWER,  20;  INJUNCTION,  1,  2;  JOINDER  OF  ACTIONS,  5;  JUDGMENT, 
9, 10,  14;  LIMITATIONS  OF  ACTIONS,  2;  PARTIES,  13. 

PERJURY. 

What  is  necessary  to  constitute  a  valid  reference  of  an  action,  for  the 
purposes  of  supporting  an  indictment  for  perjury  committed  in  giving 
false  testimony  before  the  referee.  The  People  a.  McGinnis,  1  Par- 
ker's Cr.  R.,  387. 

CRIMINAL  LAW,  tit.  Indictment,  4 ;  tit.  Evidence,  2  ;  OATH  ;  WITNESS, 
tit.  Competency,  13. 

PLEADING. 

1.  Analogies  of  the  old  system  of  pleading,  not  a  safe  guide  under  the 
Code.     Bush  a.  Prosser,  1  Kern.,  347. 

2.  Two  prominent  elements  intended  in  the  new  system  are,  that  false- 
hoods should  not  be  put  upon  the  record,  and  that  the  pleadings  should 
disclose  the  facts  relied  on  in  support  or  defence  of  an  action,  Ib. 

3.  Pleadings  to  be  liberally  construed  under  the  Code.     St.  John  a. 
Griffith,  Ante,  39. 

4.  The  facts  which  the  Code  requires  to  be  set  forth  in  the  pleadings, 
are  not  propositions  which  are  true  in  law,  but  physical  facts  capable 
as  such  of  being  established  by  evidence,  and  from  which  the  right  to 
maintain  the  action  or  the  defence  is  a  necessary  conclusion  of  law. 
Lawrence  a.  Wright,  2  Duer,  673.  See  Drake  a.  Cockroft,  Ante,  203. 

5.  The  rule  of  the  old  practice,  that  a  pleading  shall  be  construed  most 
strongly  against  the  pleader,  is  abrogated  by  the  Code.     Richards  a. 
Edick,  17  Barb.,  260. 

6.  Hypothetical  pleading  sometimes  allowable.     Ketcham  a.  Zerega, 
1  E.  D.  Smith's  C.  P.  ft.,  553.    Van  Rensselaer  a.  Layman,  10  How. 
Pr.  R.,  505. 

7.  Where  the  objection  to  the  validity  of  a  law  is  an  alleged  failure  of 
the  legislature  to  comply  with  the  provisions  of  the  constitution,  which 


NEW  YOKE.  559 


January — July,   1855. 


is  not  apparent  in  the  act  itself,  the  .nature  of  the  failure  should  be 
distinctly  set  forth  in  the  pleadings.  The  presumption  is  that  a  law 
published  under  the  authority  of  the  government  was  correctly  passed, 
at  least  as  to  matters  of  form.  People  a.  Chenango,  4  Seld.,  317. 

8.  The  rule  that  an  action  for  the  purpose  of  setting  aside  an  assign- 
ment as  fraudulent  and  void  as  against  creditors,  can  only  be  main- 
tained by  a  judgment  creditor,  and  after  return  of  execution  unsatis- 
fied, has  not  been  affected  by  section  219  of  the  Code.     That  section 
doubtless  enlarges  the  powers  of  Court  to  grant  injunctions,  but  does 
not  enlarge  the  rights  of  the  plaintiff  in  any  case  to  maintain  his  ac- 
tion.    The  cases  in  which  a  temporary  injunction  may  be  granted, 
are  all  cases  in  which  it  appears  by  the  complaint  that  the  plaintiff 
is  entitled  to  the  relief  demanded.     But  the  question  whether  he  is 
or  is  not  entitled  to  that  relief  is  left  to  be  determined  by  the  law  as 
previously  existing  and  established.     Neustadt  a.  Joel,  2  Duer,  530. 
Compare  also  Bishop  a.  Houghton,  1  E.  D.  Smith's  C.  P.  R.,  566. 
But  see  Mott  a.  Dunn,  10  How.  Pr.  R.,  225. 

9.  As  to  pleadings  in  actions  of  trespass  brought  before  a  justice  of  the 
peace  prior  to  the  Code.     McKeon  a.  Graves,  1  How.  App.  Gas.,  345. 

10.  And  in  such  actions  in  the  Supreme  Court.     Rowland  a.  Fuller, 
Ib.,  629. 

11.  It  is  improper  to  set  up  in  an  answer  that  the  complaint  does  not 
contain  facts  sufficient  to  constitute  a  cause  of  action.    Slack  a.  Heath, 
Ante,  331. 

12.  The  proper  mode  of  raising  an  objection  to  the  amount  of  the  plain- 
tiff's claim,  is  by  answer.     Moran  a.  Anderson,  Ante,  288. 

13.  Where  it  appears  on  the  face  of  the  complaint  that  there  is  an  im- 
proper joinder  of  parties,  the  objection  can  only  be  taken  by  demur- 
rer.    Baggott  a.  Boulger,  2  Duer,  160. 

14.  The  defendant  cannot  demur  and   answer  to  the   same  matter. 
Munn  a.  Barnum,  Ante,  281. 

15.  In  trying  a  demurrer  to  an  answer,  the  whole  of  the  answer  should 
be  taken  together.     Beach  a.  Berdell,  2  Duer,  327. 

16.  The  defence  of  the  Statute  of  Limitations  must  be  set  up  by  answer 
and  not  by  demurrer.     Lefferts  a.  Hollister,  10  How.  Pr.  R.,  383. 

17.  The  N.  Y.  Common  Pleas  will  not  allow  a  demurrer  to  an  answer 
which  merely  denies  the  allegations  in  the  complaint.     The  only  re- 
medy for  defects  in  such  an  answer  is  by  motion  to  strike  out,  or  to 
amend,  or  by  application  for  judgment.     Ketcham  a.  Zerega,  1  E. 
D.  Smith's  C.  P.  ./?.,  553. 

18.  The  plaintiff's  complaint  contained  eight  counts  in  the  common 


560  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

form — the  defendant's  answer  denied  generally  all  the  allegations  of 
the  complaint,  and  set  up  a  counter-claim — the  plaintiff's  reply  con- 
tained among  other  things  a  counter-claim  to  the  defendant's  counter- 
claim, and  the  defendants  moved  to  strike  out  this  portion  of  the  re- 
ply. Held,  that  the  defendants  had  mistaken  their  remedy ;  they 
should  have  demurred.  Whether  such  a  reply  is  good,  Query1? 
Stewart  a.  Travis,  10  How.  Pr.  R.,  148. 

19.  Where  a  complaint  sets  forth  two  distinct  causes  of  action  and  a 
general  demurrer  to  both  is  interposed,  if  either  cause  of  action  is 
good,  the  demurrer  must  be  overruled.     Butler  a.  Wood,  Ib.,  222. 

20.  Section  162  of  the  Code  merely  relieves  the  party  pleading  an  in- 
strument for  the  payment  of  money  only,  from  setting  out  the  instru- 
ment according  to  its  legal  effect.     He  must  still  state  his  interest  iu 
or  title  to  the  instrument,  and  such  other  facts  outside  of  it  as  are 
necessary  to  enable  him  to  recover  upon  it.     Thus  where  the  instru- 
ment requires  a  consideration  to  support  it,  the  consideration  must  be 
averred  in  the  complaint.     Prindle  a.  Carruthers,  Ib.,  33. 

21.  The  plaintiff  as  indorsee  of  a  bill  of  exchange,  sued  the  acceptor, 
declaring,  under  the  statute  of  1832,  on  the  money  counts,  and  ap- 
pending a  copy  of  the  bill,  with  notice  that  it  was  his  cause  of  action ; 
but  in  the  copy  the  indorsement  was  omitted.     Held,  that  delivery 
was  sufficiently  averred  by  implication,  that  indorsement  was  not 
necessary  to  pass  title,  and  that  the  bill  was  therefore  admissible 
upon  the  ti'ial  of  the  cause.     Purdy  a.  Vermilyea,  4  Seld.,  346. 

22.  Under  the  Code,  the  recitals  of  an  instrument  averred  in  a  com- 
plaint to  have  been  executed  by  the  defendant,  have  the  same  effect 
as  specific  averments  of  the  truth  of  the  facts  recited.     But  WOOD- 
KUFF,  J.  dissented.     Slack  a.  Heath,  Ante,  331. 

23.  In  pleading  a  subsequent  promise,  in  order  to  avoid  the  Statute  of 
Limitations,  it  is  necessary  to  aver  definitely  the  time  of  such  pro- 
mise ;  a  general  averment  of  repeated  acknowledgments  amounts  to 
nothing.     Bloodgood  a.  Bruen.     4  Seld.  362. 

24.  Whenever  a  statute  gives  a  cause  of  action  or  defence,  it  is  suffi- 
cient in  pleading  it  to  follow  the  words  of  the  act.     Cole  a.  Jessup, 
10  How.  Pr.  R.,  515. 

25.  Whether  a  general  averment  of  the  jurisdiction  of  a  foreign  trib- 
unal is  sufficient.      Query  ?     Hollister  a.  Hollister,  Ib.,  532. 

26.  In  an  action  to  set  aside  an  assignment  for  the  benefit  of  creditors, 
an  allegation  that  it  was  made  for  the  purpose  of  delaying,  hindering, 
and  defrauding  creditors, — Held,  sufficient  on  demurrer.     Whether  it 
might  not  have  been  made  more  specific  on  motion ;   Query  ?     Mott 
a.  Dunn,  Ib.,  225. 


NEW-YORK.  561 


January — July,    1855. 


27.  Under  the  Code,  the  act  of  an  agent  should  not  be  pleaded  as  the 
act  of  his  principal.     St.  John  a.  Griffith,  Ante,  39. 

28.  Proceedings  under  the  statute   (2  Rev.  Stuts.,  505,)  for  forcible 
entry  and  detainer  of  a  church  owned  by  a  religious  society  incorpor- 
ated under  the  general  act,  should  be  in  the  name  of  the  corporation, 
and  not  in  the  individual  names  of  the  trustees.     The  People  a.  Ful- 
ton, 1  Kern.,  94. 

29.  Plaintiff  suing  as  supervisor,  described  himself  in  the  title  of  the 
complaint  as  Supervisor  of  North  Hempstead,  and  commenced  it, — 
"  The  complaint  of  the  plaintiff  above  named,  as  supervisor  as  afore- 
said, shows  "  <fec. ; — Held,  on  demurrer,  a  sufficient  statement  of  the 
capacity  in  which  he  sued.     Smith  a.  Levinus,  4  Seld,  472. 

30.  In  an  action  brought  to  recover  for  services  rendered,  the  defend- 
ant, under  an  answer  which  denies  the  allegations  in  the  complaint, 
and  denies  that  he  is  indebted  to  the  plaintiff,  is  at  liberty  to  prove 
any  circumstances  tending  to  show  that  he  was  never  indebted  at  all, 
or  that  he  owed  less  than  was  claimed.     He  may,  for  example,  under 
such  denials,  prove  that  he  never  incurred  the  debt — or  that  the  ser- 
vices, either  in  whole  or  in  part,  were  rendered  as  a  gratuity — or  that 
the  plaintiff  had  himself  fixed  a  less  price  for  them  than  he  claimed 
to  recover — or  that  they  were  rendered  upon  the  credit  of  some  other 
person  than  the  defendant,  &c.     So  doing  is  not  an  attempt  to  show 
an  extinguishment  of  the  alleged  indebtedness  by  payment,  release, 
or  otherwise ;    but  to  show  that  such  indebtedness  never  existed. 
Schermerhora  a.  Van  Allen,  18  Barb.,  29. 

31.  If  one  of  several  pleas  of  a  defendant  going  to  the  whole  cause  of 
action  is  sustained,  it  bars  recovery  by  the  plaintiff,  notwithstanding 
some  other  issues  may  have  been  found  in  favor  of  the  plaintiff. 
Curtis  a.  Jones,  1  How.  App*  Cas.,  137. 

32.  Where  the  defendant  pleads  tender  before  suit,  and   pays   the 
amount  of  his  tender  into  court,  and  the  plaintiff  fails  to  show  him- 
self entitled  to  a  larger  sum,  it  is  proper  to  render  judgment  for  the 
defendant,  but  the  sum  paid  into  court  belongs  to  plaintiff.     Logue 
a.  Gillick,  1  E.  D.  Smith's  C.  P.  Jt.,  398. 

AMENDMENT  ;  ANSWER  ;  COMPLAINT  ;  EVIDENCE,  tit.  Burden  of  Proof, 
2 ;  tit.  Judgments  and  Judicial  Proceedings,  5,  6,  7 ;  tit.  In  Certain 
Actions,  1 ;  JOINDER  OF  ACTIONS,  1 ;  JUSTICES'  COURT,  tit.  Plead- 
ing; PARTIES,  14,  17;  REPLY. 

QUESTIONS  OF  LAW  AND  FACT. 

TRIAL,  tit.  Charge. 
36 


562  ABBOTTS'  PKACTICE  DIGEST. 

Reports  and  Statutes. 

RECEIVER. 

1.  A  special  receiver  entitled  to  the  instructions  of  the  court.     Curtis 
a.  Leavitt,  Ante,  274. 

2.  When  judgment  creditors  have  acquired  a  lien  upon  a  fund  in  the 
hands  of  a  receiver,  the  court  will  not,  upon  their  petition,  make  an 
order  upon  the  receiver  to  satisfy  the  judgment  out  of  the  moneys  in 
his  hands,  until  a  decree  has  been  made  in  the  action  in  which  the 
receiver  was  appointed,  and  notice  has  been  given  to  all  other  cred- 
itors interested  in  the  distribution  of  the  fund.     But  in  order  to  pro- 
tect the  petitioners,  an  order  will  be  made  upon  the  receiver  forbid- 
ding him  to  make  any  payments  out  of  the  fund  without  notice  to  the 
petitioners  to  institute  such  an  action  against  the  receiver  and  other 
parties,  as  they  may  be  advised.     Hubbard  a.  Guild,  2  Duer,  685. 

SERVICE  AND  PROOF  OP,  8;   STATUTORY  CONSTRUCTION,  4;   SUPE- 
RIOR COURT,  1,  2. 

RECOGNIZANCE   AND  BAIL. 
CRIMINAL  LAW,  tit,  Recognizance  and  Bail. 

REDEMPTION. 

Where  premises  have  been  sold  on  a  judgment  and  execution,  and  have 
been  redeemed  from  the  purchaser  by  a  junior  judgment  creditor, 
in  an  action  of  ejectment  by  an  assignee  for  the  benefit  of  creditors 
of  the  original  owner,  it  cannot  be  shown  that  the  judgment  on  which 
the  first  judgment  creditor  redeemed  was  paid  before  redemption — 
the  owner's  right  of  redemption  having  expired  before  that  time. 
Symonds  a.  Peck,  10  How.  Pr.  JR.,  395. 

REFERENCE. 

1.  A  reference  can  only  be  compelled  where  the  court  can  see  that  the 
trial  must  necessarily  involve  the  examination  of  a  long  account.     It 
is  not  sufficient  that  in  certain  exigencies  the  examination  of  such  an 
account  will  be  requisite.     Keeler  a.  The  Poughkeepsie  and  Salt 
Point  Plank  Road  Company.     Ib.,  11. 

2.  Where,  in  a  cause  submitted  for  decision  upon  the  pleadings,  it  ap- 
pears that  the  plaintiff  is  entitled  to  an  account,  but  there  are  ques- 
tions of  fact  material  to  the  taking  of  such  account,  and  no  difficult 
questions  of  law,  it  may  be  referred  to  a  referee  to  take  proofs,  and 
then  upon  the  pleadings  and  proofs  to  take  a  final  account.     Van 
Zant  a.  Cobb.    Ib.,  348. 

3.  Action  for  a  divorce  for  adultery,  referable.     The  People  a.  McGin- 
nis,  1  Parkers  Cr.  R.,  387. 


NEW-YORK.  563 


January — July,   1855. 


4.  The  old  practice,  in  moving  a  cause  for  reference,  should  be  adhered 
to ;  and  it  devolves  on  the  opposing  party  to  show  that  difficult  ques- 
tions of  law  will  arise.     Barber  a.  Cromwell,  10  How,  Pr.  R.,   351. 

5.  Of  the  powers  of  referees,  and  of  proceedings  before  them.    Mathews 
a.  Jones,  1  E.  D.  Smith's  C.  P.  R.,  429. 

6.  The  report  of  a  referee  as  to  a  question  of  fact  should  not  be  set 
aside,  unless  against  the  weight  of  evidence  so  clearly  that  if  it  were 
a  verdict  of  a  jury  it  would  be  reversed.  •  Foster  a.  Coleman.  Ib.  85. 

7.  Where   a   cause  has  been  submitted  to  a  referee,  he  may,  if  he 
thinks  the  purposes  of  justice  require  it,  re-open  the  case,  to  hear 
further  testimony.     Duguid  a.  Ogilvie,  Ante,  145.     And  see  Harpell 
«.  Curtis,  1  E.  D.  Smith's  C.  P.  R.,  78. 

APPEAL,  10,  11  ;   ATTORNEY,  7  ;  COURT,  2  ;   PERJURY,  1  ;  SPECIAL 
PROCEEDINGS,  3  ;  STATUTORY  CONSTRUCTION,  4 ;  TAXES,  5. 

REMITTITUR. 
JUDGMENT,  6. 

.'l-KcV   i   M    »ii««jV.    »VA  fJ'KV/AJ   aA/.i!/tJi^ 

REPLEVIN. 

1.  The  right  of  a  party  to  recover  immediate  delivery  of  a  specific 
thing  claimed,  given  by  section  206  of  the  Code,  does  not  deprive 
him  of  the  right  to  dispense  with  this  privilege,  and  await  its  restitu- 
tion until  he  obtains  judgment.     Vogel  a.  Badcock,  Ante,  176. 

2.  Personal  property  which  has  been  re-delivered  by  the  sheriff  to  the 
defendant,  under  section  211  of  the  Code,  in  an  action  for  its  claim 
and  delivery,  cannot  be  retaken  by  the  plaintiff.     But  the  plaintiff 
may  have  an  injunction,  restraining  the  defendant  from  injuring  or 
disposing  of  it.     Hunt  a.  Mootry,  10  How.  Pr.  R.,  478. 

3.  In  an  action  against  several  defendants  for  the  recovery  of  specific 
personal  property,  the  court  has  undoubtedly  the  power  to  adjudge 
a  return  of  the  property  in  favor  of  such  of  the  defendants  as  appear 
to  be  entitled  to  a  return,  and  to  refuse  it  as  to  such  of  them  as  are- 
not.     Woodburn  a.  Chamberlin,  17  Barb.,  446. 

4.  Of  the  liability  of  the  defendant  to  arrest  in  an  action  to  obtain  the 
possession  of  personal  property.     Reimer  a.  Nagel,  1  E.  D.  Smith's 
G.  P.  R.,  256. 

ANSWER,  25 ;  ASSIGNMENT,  3,  5 ;  COMPLAINT,  20,  21,  22,  25 ;  JOIN- 
DER OF  ACTIONS,  3  ;  TRIAL,  Tit.  Nonsuit,  3  ;  UNDERTAKING,  1,2; 
WAIVER,  1. 

REPLY. 

Plaintiff  may  reply  to  new  matter  contained  in  the  answer,  constituting 


564  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

a  counter-claim,  by  denial,  and  by  new  matter  not  inconsistent  with 
the  complaint.     Laws  c/1855,  54,  ch.  44. 
PLEADINGS. 

RETURN. 

JUSTICES'  COURT,  tit.  Jurisdiction,  5. 

SALE  OF  CHATTELS. 

ASSIGNMENT,  5,  7 ;  INTERPLEADER,  3. 

SATISFACTION  OF  PART  OF  PLAINTIFF'S  CLAIM. 

1.  The  distinction  between  an  offer  on  the  part  of  defendant  to  let  judg- 
ment be  taken  against  him  for  a  specified  sum,  and  his  admission  by 
answer  that  a  part  of  plaintiff's  claim  is  just.     Merritt  a.  Thompson, 
Ante,  223.     Dusenberry  a.  Woodward,  Ante,  443.     Quintard  a.  Se- 
cor,  Ante,  393. 

2.  When  a  fund  in  litigation  has  been  brought  into  court,  and  the  an- 
swer of  defendant  admits  a  part  of  it  to  be  due  to  the  plaintiff,  but 
disputes  his  claim  to  the  residue — the  court  may  order  the  sum  ad- 
mitted to  be  due  to  be  paid  over  to  the  plaintiff  without  prejudice  to 
his  further  claims.     Merritt  a.  Thompson,  Ante,  223. 

3.  Previous  offers  by  the  defendant  to  pay  that  sum  to  the  plaintiff  in 
full  satisfaction  of  his  claims,  form  no  reason  why  such  an  order 
should  be  refused.    Ib.     Dusenberry  a.  Woodward,  Ante,  443. 

4.  Plaintiff  sued  to  recover  the  price  of  goods  sold  to  defendant,  with 
damages  for  non-delivery  of  notes  agreed  to  be  given  in  payment  for 
them.    The  defendant,  by  answer  admitted  the  purchase  of  the  goods 
at  the  price  stated.    Held,  that  an  order  might  be  made  under  section 
224  of  the  Code,  requiring  the  defendant  to  pay  the  price  of  the 
goods.     Per  ROOSEVELT,  J.     Slauson  a.  Conkey,  Ante,  228. 

9.  A  provisional  order  directing  satisfaction  of  that  part  of  plaintiff's 
claim  admitted  by  the  answer  to  be  just,  is  inapplicable : — 

1.  Where  the  answer  admits  the  whole  of  the  plaintiff's  claim. 

2.  Where  the  complaint  is  upon  a  tort  to  recover  liquidated  damages, 
and  the  answer  admits  the  indebtedness  but  denies  the  tort.     Per 
MORRIS,  J.     Slawson  a.  Conkey,  10  How.  Pr.  R.,  57. 

6.  The  N.  Y.  Superior  Court  Avill  not  order  the  payment  of  money  by 
the  defendant  in  satisfaction  of  part  of  plaintiff's  claim,  (under  section 
244  of  the  Code,  subd.  5),  unless  the  answer  contains  a  plain,  explicit, 
and  full  admission  that  a  definite  sum  is  due  to  the  plaintiff.  This 
provision  of  the  Code  is  regarded  as  going  no  further  than  the  rule 
which  prevailed  in  the  court  of  chancery,  under  which  it  was  settled 


NEW-YOKE:.  565 


January — July,  1855. 


that  an  application  to  order  the  payment  of  money  into  court,  or  to 
a  party  before  final  decree,  must  be  founded  upon  a  full  and  explicit 
admission  by  the  defendant  of  the  sum  due.  Such  order  will  not  be 
made  therefore,  when,  to  ascertain  whether  a  specific  sum  is  due,  a 
critical  examination  of  the  pleadings  or  of  books  and  accounts  is  ne- 
cessary. Coursen  a.  Hamlin,  2  Duer,  513. 

7.  Nor  except  to  enforce  payment  of  moneys  held  in  a  fiduciary  capa- 
city.    Dusenberry  a.  Woodward,  Ante,  443.     But  see  Meyers  a. 
Trimble,  Ante,  220,  399. 

8.  Where  defendant  by  answer  admits  a  part  of  plaintiff's  claim  to  be 
just,  an  order  requiring  him  to  satisfy  such  part,  will  be  made  in  the 
Common  Pleas,  notwithstanding  that  the  defendant  has  made  an 
offer  in  writing  to  allow  the  plaintiff  to  take  judgment  for  the  sum 
admitted  to  be  due ;  and  such  an  order  will  be  enforced  by  attach- 
ment, if  necessary.     Meyers  a.  Trimble,  Ante,  220,  399  ;  Quintard 
a  Secor,  Ante,  393. 

9.  The  power  of  the  court  to  order  satisfaction  of  that  part  of  the  plain- 
tiff's claim  admitted  by  the  answer  to  be  just,  is  not  confined  to  cases 
in  which  one  or  more  of  several  distinct  items  claimed  is  admitted, 
but  such  an  order  may  be  made  where  a  part  of  a  sum  claimed  is 
admitted  to  be  due.     Quintard  a.  Secor,  Ante,  393. 

10.  A  concession  in  the  answer  that  not  more  than  a  certain  sum  was  due, 
is  a  sufficient  admission  of  that  sum  as  a  part  of  plaintiffs  claim.    Ib. 

APPEAL,  13  ;  CONTEMPT,  5. 

-I  >/..r):ri  <».!   inn      (tiii",  ;'[ 

SCHOOL  OFFICERS. 

The  practice  under  the  act  of  1st  May,  1847,  entitled  "  An  act  in  rela- 
tion to  suits  against  district  school  officers"  (Laws  1847,  163)  ; 
amended  llth  April,  1849.  (Laws  1849,  545) — considered.  People 
a.  Green,  10  How.  Pr.  R.,  468. 

JUSTICES'  COURT,  tit.  Jurisdiction,  11 ;   MANDAMUS,  4. 

SECURITY  FOR  COSTS. 

COSTS,  10,22,  23,  24,  25;  JUSTICES'  COURT,  tit.  Security;  SUPPLE- 
MENTARY PROCEEDINGS,  7. 

SERVICE  AND  PROOF  OF. 

1.  Service  of  summons  upon  an  elector  on  election  day,  is  void.    Meeks 
a.  Noxon,  Ante,  280. 

2.  When  a  statute  requires  service  of  a  notice  on  a  person,  personal  ser- 
vice is  intended,  unless  some  other  mode  of  service  is  specified  or  indi- 
cated.    Rathbun  a.  Acker,  18  Barb.,  393. 


566  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

3.  "Where  a  statute  requires  personal  notice,  a  notice  by  mail,  although 
it  reaches  the  party,  is  no  compliance  with  the  statute.    Ib. 

4.  Where  the  statute  requires  a  notice  to  be  served  "  personally,"  or  by 
depositing  the  same  in  the  post-office,  properly  folded,  and  directed 
to  the  said  persons  at  their  respective  places  of  residence,"  the  valid- 
ity of  the  service  by  mail  does  not  depend  upon  the  locality  of  resi- 
dence, but  parties  residing  in  the  town  where  the  service  is  made 
may  be  served  by  mail.     But  DENIO  and  ALLEN,  J.  J.,  dissented. 
Stan  ton  «.  Kline,  1  Kern.,  196. 

5.  The  expression  "  at  his  place  of  residence,"  in  section  41 1  of  the 
Code,  relates  to  the  post-office  and  not  to  any  particular  locality  in  a 
town  or  city.     A  package  addressed  to  an  attorney  at  New  York, 
without  the  addition  of  his  street  and  number,  Held  sufficient  service. 
Oothout  a.  Ehinelander,  10  How.  Pr.  R.,  460. 

6.  Service  of  summons  under  the  "  Act  to  facilitate  the  service  of  pro- 
cess in  certain  cases,"  (Laws  of  1853,  ch.  511).     Jones  a.  Derby, 
Ante,  458. 

7.  Service  of  process  upon  a  foreign  corporation,  doing  business  in  this 
State,  may  be  made  upon  any  person  found  within  the  State  acting 
as  their  agent,  unless  by  a  designation  filed  in  the  office  of  the  Secre- 
tary of  State  they  have  appointed    some  person  in  the  county  to 
receive  service.     Laws  0/1855,  470,  ch.  279. 

8.  A  motion  for  the  appointment  of  a  receiver  will  be  denied  as  irregu- 
lar, when  the  order  to  show  cause  against  the  appointment  is  served 
before  the  commencement  of  the  suit.     Kattenstroth  a.  The  Astor 
Bank,  2  Duer,  632. 

9.  The  official  certificate  of  a  sheriff  of  another  State  is  not  evidence  in 
this  State  of  service  of  papers ;  his  affidavit  should  be  presented. 
Thurston  a.  King,  Ante,  126. 

10.  Requisites  of  an  affidavit  of  service.     Van  Wyck  a.  Reid,  10  How, 
Pr.  R.,  366. 

JUDGMENT,  11,  12;   JUSTICES'  COURT,  tit.  Jurisdiction,  5;  STAY  OF 
PROCEEDINGS,  3,  4,  5. 

SESSIONS. 

1.  Where  one  of  the  members  of  a  court  of  sessions  granting  an  order 
of  maintenance  is  one  of  the  individuals  who,  as  superintendents  of 
the  poor,  apply  for  the  order,  the  court  have  no  jurisdiction,  and  the 
proceedings  and  order  are  void.     Converse  a.  McArthur,  1 7  Barb., 
410;  Baldwin  a.  McArthur,  Ib.,  414. 

2.  A  justice  holding  special  sessions  sits  as  a  court,  and  cannot  render 


NEW-YORK.  567 


January — July,    1855. 


judgment  except  when  his  conrt  is  in  session,  and  the  record  must 
show  this  ;  and,  although  he  may  hold  his  court  open  after  verdict  for 
a  time,  yet  where  his  session  has  come  to  an  end  he  cannot  reorgan- 
ize the  court  to  render  judgment.  Lattimore  a.  The  People,  10  How. 
Pr.  R.,  336. 

3.  Where  the  order  of  a  county  judge,  made  under  Laws  of  1851,  825, 
appointed  time  and  place  of  County  Court,  but  omitted  to  add  the 
Court  of  Sessions,  an  indictment,  proceedings  and  conviction  had  in 
the  Court  of  Sessions,  were  set  aside  and  quashed  by  the  Supreme 
Court,  on  certiorari.     People  a.  Monegan,  1  Parker's  Cr.  R.,  570. 

4.  Courts  of  Sessions  as  authorized  under  the  judiciary  act  of  1847, 
have  not  power  to  grant  new  trials.     It  seems  that  Courts  of  Oyer 
and  Terminer  have  this  power.     The  People  a.  The  Court  of  Ses- 
sions of  Wayne  County,  Ib.,  369. 

5.  Where  one  of  the  members  of  a  county  Court  of  Sessions  is  absent, 
or  is  by  interest  or  otherwise  disqualified  from  acting  in  a  particular 
proceeding,  it  is  the  duty  of  the  county  judge  to  designate  some  other 
justice  of  the  peace  of  the  county  to  supply  the  vacancy.     Baldwin  a. 
Me  Arthur,  17  Barb.,  414. 

6.  The  jurisdiction  of  the  Court  of  General  Sessions  of  the  city  and 
county  of  New  York,  extended  to  all  crimes  and  misdemeanors  what- 
soever.    This  court  may  punish  for  contempt.     Laws  of  1855,  613, 
ch.  337. 

7.  The  jurisdiction  of  the  Court  of  Special  Sessions  of  the  city  and 
county  of  New  York  extended  to  all  misdemeanors.     The  accused 
may  elect  to  be  tried  at  General  Sessions.    Laws  of  1855,  613,  ch.  337. 

•  CRIMINAL  LAW,  tit.  Recognizance  and  Bail,  5. 

SHERIFF. 

1.  The  distinction  between  acts  performed  virtute  officii  and  those  done 
colore  offici,  considered.     Dennisori  a.  Plumb,  18  Barb.,  89. 

2.  A  bond  of  indemnity  given  to  the  sheriff,  upon  execution,  is  not  in- 
validated by  the  fact  that  it  was  given  after  levy  and  sale.     Wester- 
velt  a.  Frost,  Ante,  74. 

3.  Where  the  sheriff  was  adjudged  guilty  of  contempt,  in  refusing  to 
return  an  execution,  and  was  ordered  to  pay  the  judgment  creditor  a 
fine  to  the  amount  of  the  claim,  and  the  plaintiff  in  the  execution  as- 
signed the  judgments  to  the  son  of  the  sheriff,  for  the  benefit,  as  ap- 
peared, of  the  sheriff  and  his  sureties : — Held, 

1.  That  the  sheriff  could  not  thereafter  enforce  the  execution.     A 
sheriff  cannot  do  execution  when  he  himself  is  a  party,  and  whether 


568  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

he  is  nominally  a  party  or  only  beneficially  interested,  cannot  affect 
the  question. 
2.  That  the  sale  and  conveyance  of  real  property  by  the  sheriff  under 

the  execution  was  void.     Carpenter  a.  Stilwell,  1  Kern.,  61. 
4.  The  defences  in  an  action  against  a  sheriff  for  an  escape.     Gino- 

chio  a.  Orser,  Ante,  433. 

ARKEST,  1 ;  ATTACHMENT,  4 ;  CHATTEL  MORTGAGE,  2  ;  EVIDENCE  tit. 
JUDGMENTS  and  Judicial  proceedings,  2;  INTERPLEADER,  4;  JOIN- 
DER OF  ACTIONS,  7 ;  LIMITATION  OF  ACTIONS,  5 ;  SERVICE  OF  PRO- 
CESS, 9. 

SPECIAL  PROCEEDINGS. 

1.  Proceedings  for  the  appraisal  of  lands  taken  for  a  railroad  are  Spe- 
cial Proceedings.     An  order  affirming  the  report  of  the  Commission- 
ers in  such  proceedings  is  appealable,  where  the  appeal  was  taken 
and  undetermined  before  the  passage  of  the  act  of  1854,  in  relation 
to  Special  Proceedings ;  and  although  previous  to  the  passage  of  that 
act  there  was  no  authority  for  such  an  appeal.     Where  a  report  of 
commissioners  of  appraisement,  upon  its  face  conforms  in  substance 
to  that  requirement  of  the  act,  and  notice  is  properly  given  for  its 
confirmation,  it  is  the  duty  of  the  court  to  confirm  it.     No  affidavit  or 
other  proof  should  be  heard  on  such  application  to  impeach  the  report. 
An  error  of  law  committed  by  the  commissioners  in  their  decision  or 
in  the  admission  or  rejection  of  evidence  can  be  reviewed  only  on 
appeal  from  their  appraisal.     Rochester  &  Genesee  Valley  R.  R.  Co. 
a.  Beckwith,  10  How.  Pr.  R.,  168. 

2.  The  Supreme  Court  has  full  power  in  regard  to  these  proceedings, 
and  an  appeal  from  their  order  confirming  a  report,  will'  be  dismis- 
sed.    New  York  Central  R.  R.  a.  Marvin,  1  Kern.,  276. 

3.  The  Referees  appointed  upon  appeal  from  the  determination  of  the 
commissioners  of  highways  in  refusing  to  lay  out,  alter,  or  discontinue 
a  road,  possess  all  the  powers  and  are  required  to  discharge  all  the 
duties  formerly  possessed  by  the  three  judges  under  the  Rev.  Stats. 
The  People  a.  the  Commissioners  of  Highways,  4  Seld.  476. 

4.  Of  proceedings  by  the  corporation  of  the  City  of  New  York  to  ex- 
tend a  pier.     Marshall  a.  Vultee,  1  E.  D.  Smith's   C.  P.  R.,  294. 
And  see  Thompson  a.  The  Mayor,  &c.,  of  New  York,  1  Kern.,  115. 
And  Marshall  a.  Guion,  Ib.,  461. 

5.  Construction  of  notice  to  reirove  articles  obstructing  a  street,  "  on  or 
before"  a  specified  day.     Coddington  a.  White,  2  Duer,  390. 

6.  The  proceedings  to  compel  the  determination  of  claims  to  real  pro- 
perty, referred  to  by  section  308  of  the  Code,  are  those  specially  au- 


NEW-YORK.  569 


January — July,   1855. 


thorized  by  2  Rev.  Stats.,  312.  And  that  section  does  not  embrace 
an  action  to  set  aside  a  conveyance  of  real  estate  upon  the  ground  of 
incompetency  of  the  grantor.  Bridges  a.  Miller,  lb.,  683. 

7.  The  proper  mode  of  proceeding  in  an  action  to  compel  the  determi- 
nation of  claims  to  real  property.    Hammond  a.  Tillotson,  18  B^irb.,  332. 

8.  The  statute  relative  to  proceedings  to  compel  the  determination  of 
claims  to  real  property,  amended.     Laws  of  1855,  943,  ch.  511. 

9.  Proceedings  to  abolish  the  distinction  between  town  and  county  poor. 
Baldwin  a.  McArthur,  17  Barb.,  414. 

CORPORATION,  14 ;  JUDGMENT,  19  ;  LUNATICS  AND  HABITUAL  DRUNK- 
ARDS ;  SUPREME  COURT. 

SPECIFIC  PERFORMANCE. 

When  a  specific  performance  will  be  decreed.  Slocum  o.  Closson,  1 
How.  App.  Cos.,  705.  Clarke  a.  The  Rochester,  Lockport,  &  Nia- 
gara Falls  R.  R.  Co.,  18  Barb.,  350. 

STATUTORY  CONSTRUCTION. 

1.  Of  the  principles  which  should  govern  in  the  construction  of  statutes. 
McCluskey  a.  Cromwell,  1  Kern.,  593. 

2.  Where  a  statute  prescribes  the  giving  of  an  instrument,  and  its  pur- 
port, it  is  consideration  enough  to  support  the  instrument  that  it  was 
given  pursuant  to  the  statute.     Slack  a.  Heath,  Ante,  331. 

3.  Where  the  statute  requires  the  execution  of  a  bond  to  be  by  "  the 
debtor  or  his  agent,  with  such  sureties  as  shall  be  approved,"  &c.,  an 
omission  to  procure  more  than  one  surety  does  not  invalidate  it. 
Ward  a.  Whitney,  4  Seld.,  442. 

4.  Powers  and  duties  of  receivers  in  an  equity  suit  commenced  before 
the  Code.     Tracy  a.  Talmadge,  Ante,  460. 

ATTACHMENT,  6, 7  ;  CERTIORARI  ;  COSTS,  23,  24,  25 ;  EXECUTION,  5. 

STAY  OF  PROCEEDINGS. 

1.  An  appeal  from  an  order  overruling  a  demurrer  operates  as  a  stay 
of  proceedings  ;  no  undertaking  being  necessary.     Cook  a.  Pomeroy, 
10  How.  Pr.  R.,  103. 

2.  What  is  a  judgment  directing  the  payment  of  money,  within  the 
meaning  of  section  335  of  the  Code,  relating  to  the  stay  of  execu- 
tion on  appeal.     Curtis  a.  Leavitt,  Ante,  274. 

3.  The  court  may  grant  an  ex  parte  order  staying  proceedings  for  more 
than  twenty  days,  although  a  justice  of  the  court  sitting  at  chambers 
cannot  do  so.     The  papers  on  which  such  order  is  founded  need  not 


570  ABBOTTS'  PRACTICE  DIGEST. 


be  served  with  the  order.  Section  405  of  the  Code,  applies  only  to 
orders  enlarging  the  time  within  which  proceedings  in  the  action 
must  be  had.  Harris  a.  Clark,  10  How.  Pr.  R.,  415. 

4.  To  render  an  appeal  from  a  judgment  at  circuit  or  special  term 
effectual  as  a  stay  of  proceedings,  an  undertaking  must  be  executed 
by  the  appellant  to  the  effect  that  he  will  pay  all  the  costs  as  well  as 
the  damages  which  may  be  awarded  against  him  on  appeal.     An 
omission  to  provide  in  the  undertaking  for  the  costs  of  the  appeal  is 
fatal,  and  such  an  undertaking  will  not  prevent  the  issuing  of  execu- 
tion.    The  party  on  whom  such  an  undertaking  is  served  is  not 
bound  to  return  it  with  a  statement  of  his  objections.     Chemung 
Canal  Bank  <i.  Judson,  lb.,  133. 

5.  The  undertaking  to  stay  proceedings,  on  appeal,  according  to  section 
335  of  the  Code,  must  be  filed  and  served  with  the  notice  of  appeal, 
or  it  will  not  stay  proceedings.    If  it  is  not  served  until  afterwards, 
the  court  will  not,  on  motion,  grant  a  stay  of  proceedings,  unless  mis- 
take is  shown.     N.  Y.  Central  Insurance  Co.  a.  Safford.     lb.,  344. 

APPEAL,  1,  12;  CRIMINAL  LAW,  tit.    Writ  of  Error,  3;  COSTS,  20; 
COURT,  5 ;  MOTIONS  AND  ORDERS,  6,  7. 

SUMMONS. 

A  summons  which  does  not  state  the  name  of  any  court  is  not  void ; 
and  an  order  denying  a  motion  to  set  aside  a  judgment  entered  on 
the  service  of  such  a  summons,  is  not  appealable.  Tallman  a.  Hin- 
man,  Ib.  89. 

AMENDMENT,  4;  JUDGMENT,  11,  12;  JUSTICES'  COURT,  tit.  Jurisdic- 
tion, 3  ;  tit.  Summons ;  SERVICE  AND  PROOF  OF,  1. 

SUPERIOR   COURT. 

1.  The  N.  Y.  Superior  Court  has  no  jurisdiction  to  appoint  a  receiver 
of  the  property  and  effects  of  a  foreign  corporation,  for  the  purpose 
of  winding  up  its  affairs.     Day  a.  The   United  States   Car  Spring 
Company,  2  Duer,  608. 

2.  Whether  it  has  such  jurisdiction  in  the  case  of  a  corporation  created 
under  the  laws  of  this  State,  but  located  and  transacting  its  business 
in  the  city  of  New  York, — doubted.     Kattenstroth  «.  The   Astor 
Bank.  Ib.,  632. 

3.  It   will   not   take   jurisdiction    to   issue    a  commission   of  lunacy. 
Brown's  Case,  Ante,  108. 

ATTACHMENT,  9  ;  DISCOVERY  ;  JURISDICTION,  9. 


NEW-YORK.  5T1 


January — July,    1855. 


SUPERVISORS. 

The  jurisdiction  of  the  board  of  supervisors,  of  a  claim  for  costs  incur- 
red by  the  trustees  or  other  officers  of  a  school  district.  People  a. 
Green,  10  How.  Pr.  R.,  468. 

EVIDENCE,  tit.  Judgments  and  Judicial  Proceedings,  8  ;  MANDAMUS,  3. 

SUPPLEMENTARY   PROCEEDINGS. 

1.  An  order  adjudging  the  defendant  in  supplementary  proceedings 
guilty  of  contempt,  in  not  paying  over  money,  as  directed  by  the 
court,  must  be  entered  with  the  clerk,  before  an  appeal  can  be  taken. 
Stewart  a.  Travis,  lb.,  148. 

2.  A  foreign  consul  cannot  be  examined  as  a  judgment  debtor,  under 
the  provisions  of  the  Code  ;  and  if  an  order  for  his  examination  has 
been  obtained  and  served,  he  cannot  be  attached  for  his  refusal  to  obey 
it.     Griffin  a.  Dominguez,  2  Duer,  656. 

3.  Section  292  of  the  Code  relative  to  proceedings  supplementary  to 
execution,  is  not  applicable  in  case  of  a  judgment  against  a  corpora- 
tion.    The  proper  mode  of  procedure  is  under  the  provisions  of  the 
Revised  Statutes  relative  to  proceedings  in  equity  against  corpora- 
tions.    (2  Rev.  Stats.,  463.)     Hinds  a.  The  Canandaigua  &  Niagara 
Falls  R.  R.  Co.,  10  How.  Pr.  R.,  487. 

4.  The  provisions  of  the  Code  relative  to  supplementary  proceedings 
where  the  debtor  has  property  which  he  unjustly  refuses  to  apply 
towards  the  satisfaction  of  the  judgment,  are  not  applicable  to  cases 
where  the  property  is  in  the  open  and  notorious  possession  of  the 
debtor,  and  within  reach  of  execution,  and  where  the  debtor  shows 
no  design  to  remove  or  fraudulently  dispose  of  it.     Sackett  a.  New- 
ton, lb.,  560. 

5.  When  it  will  be  presumed  that  a  judgment  was  for  twenty-five  dol- 
lars, exclusive  of  costs.     Whitlock's  Case,  Ante,  320. 

6.  It  seems,  that  there  is  no  case  in  which  it  is  proper,  on  supplemen- 
tary proceedings,  to  review  the  merits  of  the  original  action.     O'Neil 
a.  Martin,  1  E.  D.  Smith's  C.  P.  R.,  404. 

7.  An  order  dismissing  proceedings  supplementary  to  execution,  is  ap- 
pealable, but  no  security  is  required  unless  a  stay  of  proceedings  is 
necessary,     lb. 

SUPREME  COURT. 

The  limits  of  the  equitable  jurisdiction  of  the  Supreme  Court  over  the 
proceedings  of  commissioners  of  estimate  and  assessment  appointed 
by  statute,  denned.     Woodruff  a.  Fisher,  17  Barb.,  224. 
COURT,  1,  2;  PLEADING,  10. 


572  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

SURROGATE'S  COURT. 

1.  Surrogates  possess  summary  power  to  settle  and  adjust  the  accounts 
of  guardians,  and  order  payment  of  balance  upon  final  accounting. 
To  "account"  means,  to  render  a  statement  of  receipts  and  disburse- 
ments, and  pay  over  the  balance  due  thereon.     Seaman  a.  Duryea, 
1  Kern,  324. 

2.  Requisites  of  complaint  in  an  action  by  a  creditor  against  the  heir  or 
devisee  of  his  deceased  debtor.     Hollister  a.  Hollister,  10  How.  Pr. 
E.,  532. 

CONTEMPT,  2,  3 ;  ASSIGNMENT,  10. 

TAXES. 

1.  The  power  to  determine  what  description  of  persons  shall  be  taxed,  is 
vested  solely  in  the  Legislature.    Wilson  a.  The  Mayor,  &c.,  Ante,  4. 

2.  The  Legislature  of  this  State  might  constitutionally  have  imposed 
taxes  on  the  personal  property  within  the  State,  of  non-residents  ;  but 
they  have  not  done  so.     Ib. 

3.  The  several  remedies  at  law  for  the  illegal  taxation  of  a  non-resi- 
dent, enumerated.     Ib. 

4.  Assessors  acting  without  their  jurisdiction  are  liable  in  an  action  for 
subjecting  one  to  an  illegal  and  unfounded  tax.     People  a.  Super- 
visors of  Chenango,  1  Kern.,  563. 

5.  In  an  action  brought  by  any  of  several  persons  interested  in  real  es- 
tate which  has  been  sold,  or  is  liable  to  be  sold,  for  taxes,  to  compel 
an  apportionment  of  the  tax  upon  the  several  interests,  the  Supreme 
Court  have  power,  on  application,  to  extend  the  time  of  redemption. 
Like  proceedings  may  be  had  to  redeem,  by  agreement  with  the  pur- 
chaser.    Proceedings  requisite  in  case  any  of  those  interested  are 
unknown,  or  are  non-residents.     Presumptive  owners  made  parties. 
Sales  to  be  made  by  referee.     Laws  of  1855,  537,  ch.  327. 

TITLE  TO  LANDS. 

APPEAL,  9  ;  COMPLAINT,  17, 18 ;  COSTS,  8  ;  EVIDENCE,  tit.  Judgments 
and  Judicial  Proceedings,  4 ;  JUSTICES'  COURT,  tit.  Jurisdiction,  8 ; 
GUARDIAN  AD  LITEM,  1 ;  MARRIED  WOMEN  ;  PARTITION  ;  REDEMP- 
TION ;  SHERIFF,  3 ;  SPECIAL  PROCEEDINGS,  6,  7 ;  TAXES,  5. 

TRIAL. 

[AMENDMENT,  5,  6,  7;  ANSWER,  23,  24;  APPEAL,  14;  COSTS,  3,  5, 
8,  11,  14,  15,  16;  CRIMINAL  LAW,  tit.  Trial;  EJECTMENT;  EXAM- 
INATION OF  ASSIGNOR;  EXAMINATION  OF  PARTIES;  EXCEPTIONS; 
EVIDENCE;  JUSTICES'  COURT.] 


NEW-YOKE.  573 


January — July,   1855. 


I.  Place  of  Trial 

1.  The  defendant,  after  demanding  that  the  place  of  trial  be  changed  to 
the  proper  county,  may  apply  to  the  court  for  an  order  directing  the 
change,  at  any  time  before  the  plaintiff's  time  for  serving  an  amended 
complaint  has  expired.     Conroe  a.  National  Protection  Ins.  Co.,  10 
How.  Pr.  R.,  403. 

2.  Where  the  defendants  were  a  corporation  whose  place  of  business 
was  in  Saratoga  County,  and  the  plaintiffs  were  non-residents,  a  mo- 
tion was  granted  to  change  the  place  of  trial  to  Saratoga  County.    A 
•corporation  must  be  deemed  to  have  a  residence,  and  its  residence  is 
its  place  of  business.     Ib. 

II.  Examination  of  Witness. 

1.  A  witness  competent  to  testify  of  some  matters,  but  not  as  to  others 
(e.  g.  a  defendant  competent  for  his  co-defendant  as  to  matters  tend- 
ing to  establish  a  separate  defence)  is  not  to  be  excluded  by  objection 
to  his  competency  generally,  but  improper  evidence  is  to  be  excluded 
only  by  objection  to  improper  questions  when  asked.     Beal  a.  Finch, 
1  Kern.,  128;  compare  Commercial  Bank  of  Pennsylvania  a.  Union 
Bank  of  New  York,  Ib.,  203. 

2.  A  party  placing  a  witness  on  the  stand,  may  be  required  by  his  ad- 
versary to  state  what  he  proposes  to  prove.     Per  PABKER,  J.,  Beal 
a.  Finch,  1  Kern.,  128. 

3.  Where  a  witness  offered  is  objected  to  for  interest,  it-  is  in  modern 
practice  entirely  discretionary  with  the  court  whether  the  witness 
shall  first  be  put  upon  his  voir  dire,  or  whether  the  oath  in  chief  shall 
be  administered.      The  more  approved  practice  now  is  to  swear 
the  witness  in  chief,  and  to  bring  out  the  facts  creating  the  alleged 
interest  on  the  examination.     Seeley  a.  Engell,  17  Barb.,  530. 

4.  It  is  within  the  discretion  of  the  court  to  permit  leading  questions  to 
be  put  to  a  witness,  even  upon  his  direct  examination,  under  particu- 
lar circumstances.     This  may  be  done  when  an  omission  in  the  wit- 
ness's testimony  is  evidently  caused  by  a  want  of  recollection  which 
a  suggestion  may  assist.     Cheeney  a.  Arnold,  18  Barb.,  434. 

5.  It  is  not  erroneous  to  reject  evidence  as  irrelevant,  merely  because 
a  state  of  the  proofs  might  subsequently  arise  which  would  render 
the  evidence  pertinent  and  proper ;  although  when  counsel  avow  an 
intention  to  supply  testimony  in  the  further  progress  of  the  cause, 
which  would  give  pertinency  to  the  question  objected  to,  the  court  in 
the  exercise  of  that  discretion  which  regulates  the  order  of  proofs 
may  properly  allow  an  immediate  answer.     Cass  a.  The  New  York 
&  New  Haven  R.  R.  Co.,  1  E.  D.  Smith's    C.  P.  R.,  522.     And 
see  Gibson  o.  Pearsall,  Ib.,  90.     Downing  a.  De  Klyn,  Ib.,  563. 


574  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

III.  Nonsuit. 

1.  The  dismissal  of  a  complaint  under  the  Code  in  an  action  for  legal 
relief  has  no  other  effect  than  that  of  a  nonsuit  under  the  old  prac- 
tice. It  is  no  bar  to  a  subsequent  suit.  Harrison  a.  Wood,  2  Duer,  50. 

2.  The  plaintiff's  proper  course,  if  surprised  by  testimony  upon  the  trial, 
is  to  submit  to  a  nonsuit  or  apply  for  leave  to  withdraw  a  juror.    He 
cannot,  after  having  submitted  his  cause,  and  on  finding  that  the  ver- 
dict is  against  him,  become  surprised  and  ask  the  court  to  relieve 
him.     The  People  a.  Marks,  10  How.  Pr.  .ft.,  261. 

3.  Where  in  an  action  against  several  defendants  to  recover  the  posses- 
sion of  specific  personal  property,  a  taking  of  the  goods  by  one  of  the 
defendants  is  fully  proved,  while  nothing  appears  to  charge  the  others, 
this  is  not  ground  for  a  nonsuit  as  to  all  the  defendants.     But  the 
defendants  against  whom  there  is  no  evidence  will  be  entitled  to  ,1 
nonsuit,  while  the  issue  between  the  plaintiff  and  the  other  defendant 
should  be  submitted  to  the  jury.  Woodburn  a.  Chamberlin,  17  Barb., 
446. 

4.  Although   a  nonsuit  applied  for  on  account  of  a  defect  in  proof 
might  properly  have  been  granted,  yet  if  either  party  in  the  course 
of  trial  supplies  the  proof  which  was  before  wanting,  the  objection  is 
obviated.     Schenectady  &  Saratoga  Plank  Road  Co.,  a,  Thatcher, 
1  Kern.,  102.     The  Mayor,  &c.,  of  N.  Y.,  a.  Mason,  Ante,  344. 
Breidert  a.  Vincent,  1  E.  D.  Smith's  C.  P.  £.,  542. 

5.  Allowance  to  defendant  in  case  of  nonsuit.  Allaire  a.  Lee,  Ante,  125. 

IV.  Charge. 

1.  Where  an  allegation  is  wholly  unsupported  by  proof,  or  where  an 
allegation  is  supported  by  prima  facie  evidence,  and  there  is  no  evi- 
dence against  it,  the  judge  is  not  bound  to  submit  it  to  the  jury  as 
an  open  question,  but  may  instruct  them  to  find  it  false  or  true,  ac- 
cording to  the  proof.     The  People  a.  Cook,  4  Se/d.,  67. 

2.  Date  of  material  alteration  in  an  agreement,  a  question  of  fact. 
Pringle  a.  Chambers,  Ante,  58. 

3.  It  is  a  question  of  fact,  when  an  instrument,  bearing  no  date,  was 
made.     Coons  a.  Chambers,  Ante,  165. 

4.  Whether  on  a  given  state  of  facts  a  transaction  amounts  to  an  ac- 
count stated  is  a  question  of  law  and  not  of  fact.     What  are  the  re- 
quisites of  an  account  stated.     Lockwood  a.  Thome,  1  Kern.,  170. 

5.  A  request  to  tiie  court  to  charge  the  jury,  should  be  in  such  form  that 
the  court  may  charge  in  the  terms  of  the  request  without  qualification. 
Carpenter  u.  Stillwell,  1  Kern.,  61. 

6.  Where  the  judge  instructed  the  jury  that  they  must  come  to  a  certain 


NEW-YORK.  575 


January — July,   1855. 


conclusion  if  they  believed  the  testimony  of  the  witness  to  certain 
facts,  and  the  case  showed  the  witness  did  not  testify  to  any  such  facts 
— Held,  a  misdirection.  Dolsen  a.  Arnold,  10  How.  Pr.  R.,  528. 

V.   Verdict. 

1.  When  the  jury  have  improperly  severed  the  damages  in  an  action 
for  a  tort  against  several  defendants,  the  plaintiff  may  enter  judgment 
against  all  the  defendants  for  the  largest  damages  given  against  any 
one  of  them.     Beal  a.  Finch,  1  Kern.,  128.     The  above  rule  was 
doubted  in  Bulkeley  a.  Smith,  2  Duer,  261. 

2.  The  special  verdict  should  not  necessarily  contain  as  well  the  facts 
admitted  in  the  pleadings  as  those  found  by  the  jury ;  but  the  plead- 
ings and  the  verdict  together  may  properly  present  the  legal  ques- 
tions to  the  court  on  appeal.     Barto  a.  Himrod,  4  Seld.,  483. 

VL  New  Trial 

1.  A  verdict  will  not  be  set  aside  for  misdirection  on  the  part  of  the 
judge,  if  the  court  can  see  from  the  evidence  in  the  cause  that  the 
result  would  have  been  the  same,  whether  the  objectionable  directions 
had  been  given  or  not ;  or  where  the  evidence  warrants  the  verdict. 
(2  Cai.  R.,  85 ;  5  Wend.,  257 ;  10  Johns.,  447 ;  12  Wend.  299).  Als- 
ston  a.  Jones,  17  Barb.,  276. 

2.  A  verdict  against  defendant  in  an  action  for  enticing  away  plaintiff's 
wife,  will  not  be  set  aside  as  excessive,  unless  facts  appear  which 
show  that  the  jury  were  actuated  by  improper  motives.     And  the 
court  will  not  infer  this,  merely  from  the  amount  of  damages.    Scherpf 
a.  Szadeczky,  Ante,  366.     But  see  Knight  a.  Wilcox,  18  Barb.,  212. 

3.  The  rule  that  a  verdict  will  not  be  disturbed,  unless  clearly  and  pal- 
pably wrong,  is  applicable  to  the  decision  of  a  judge  upon  an  issue  of 
fact,  tried  by  him  without  a  jury.     Mann  a.  Witbeck,  17  Birb.,  388. 

4.  Where  evidence,  erroneously  admitted,  tends  directly  to  establish 
the  plaintiff's  case,  the  court  cannot  refuse  to  reverse  a  judgment  for 
the  plaintiff,  on  the  ground  that  the  other  proofs  in  the  cause  would 
have  warranted  the  judgment,  had  the  objectionable  evidence  been 
excluded.     Halm  a.  Van  Doren,  1   E.  D.   Smith's  C.  P.  R.,  411. 

5.  A  party  will  not  be  allowed  to  take  an  objection  for  the  first  time 
upon  a  motion  for  a  new  trial,  which,  if  it  had  been  made  at  the  cir- 
cuit, might  have  been  obviated.     Therefore,  where  a  cause  went  to 
trial,  upon  a  complaint  and  answer,  and  the  defendant  examined  wit- 
nesses, to  prove  the  facts  alleged  as  a  defence  in  his  answer,  and  the 
plaintiff  had  a  verdict,  and  the  defendant,  upon  appeal  from  an  order 


576  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

at  special  term,  denying  his  motion  for  a  new  trial,  for  the  first  time 
raised  the  objection  that  the  plaintiff  was  concluded  by  the  allega- 
tions in  the  answer,  in  consequence  of  his  failure  to  reply  : — 
Held — 1.  That  it  was  now  too  late  to  raise  the  objection. 
2.  That  the  defendant  should  have  raised  the  objection  at  the  trial ;  in 
which  case  he  would  have  had  a  verdict  upon  the  pleadings — or  the 
point  would  have  been  ruled  against  him,  giving  him  the  right  to  ap- 
peal upon  exceptions, — or  more  properly,  leave  would  have  been 
given  to  the  plaintiff  to  withdraw  a  juror,  and  file  a  reply  upon  terms. 
Smith  a.  Floyd,  18  Barb.,  522. 

6.  Where  a  record,  improperly  attested  had  been  admitted  upon  the 
trial,  and  the  proper  certificates  were  produced  and  filed  upon  the 
motion  for  a  new  trial — Held,  that  a  new  trial  would  not  be  granted. 
Markoe  a.  Aldrich,  Ante,  55. 

7.  After  a  new  trial  is   ordered,  for  error,  in  admitting  a  deposition 
taken  de  bene  esse  upon  insufficient  proof  that  the  witness  was  absent 
from  the  State,  a  motion  for  leave  to  supply  such  proof,  and  thus 
cure  the  defect,  will  not  be  granted.     Fry  a.  Bennett,  Ante,  289. 

8.  A  new  trial,  on  the  ground  of  newly  discovered  evidence  will  not  be 
granted,  although  the  evidence  is  material,  and  if  produced  would 
have  entitled  the  plaintiff  to  judgment ;  where  he  might,  by  ordinary 
diligence,  have  availed  himself  of  it  upon  the  trial.     The  People  a. 
Marks,  10  How.  Pr.  R.,  261. 

6.  Certain  newly  discovered  evidence,  held  neither  cumulative  nor  im- 
peaching.    Simmons  a.  Fay,  1  E.  D.  Smith's  C.  P.  R.,  107. 

10.  Where  it  appeared  by  the  testimony  of  a  single  witness,  whose  tes- 
timony was  not  impeached  by  cross  examination  or  otherwise,  that 
an  accord  and  satisfaction,  on  which  the  defendant  relied,  was  obtained 
by  fraud  and  gross  misrepresentation  of  his  affairs.     Held,  that  the 
accord  and  satisfaction  was  void,  and,  the  jury  having  disregarded 
the  testimony,  that  the  verdict  should  be  set  aside  as  again.st  evi- 
dence, and  a  new  trial  ordered.     Dolsen  a.  Arnold,  10  How.  Pr. 
R.  528. 

11.  A  new  trial  will  not  be  granted  on  the  ground  of  surprise,  where 
surprise  arose  from  the  production  of  an  unexpected  witness  to  cer- 
tain facts,  to  impeach  whom  no  preparation  had  been  made,  and  the 
omission  to  call  an  anticipated  witness,  whose  impeachment  had  been 
prepared  for.     Beach  a.  Tooker,  lb.,  297. 

APPEAL,  14,  16;  COSTS,  13,  14, 15;  CRIMINAL  LAW,  tit.  New  Trial, 
EXCEPTIONS,  7  ;  SESSIONS,  4. 


NEW-YORK.  577 


January — July,  1855. 


UNDERTAKING.  * 

1.  It  is  no  objection  to  an  undertaking  given  by  the  defendant  for  the 
return  of  specific  personal  property  which  has  been  taken  from  him 
by  requisition  on  the  part  of  the  plaintiff,  that  the  undertaking  pur- 
ports to  be  given  to  the  plaintiff,  and  not  to  the  sheriff.     Slack  a 
Heath,  Ante,  331. 

2.  Error  in  recitals  in  an  undertaking  disregarded.     Hyde  a.  Patter- 
son, Ante,  248. 

3.  As  soon  as  a  party  has  a  right  of  action  on  an  undertaking  filed,  he 
may  sue  upon  it  without  leave  of  court.     It  is  his  property,  although 
he  has  no  right  to  remove  it  from  the  files  without  leave.    Van  Zant 
a.  Cobb,  10  Now.  Pr.  R.,  348. 

COSTS,  22,  25 ;  STAY  OF  PROCEEDINGS,  1. 

UNITED  STATES'  COURTS. 

The  District  and  Circuit  Courts  of  the  United  States  not  courts  of  in- 
ferior jurisdiction.     Chemung  Canal  Bank  a.  Judson,  4  Seld^  254. 
JURISDICTION,  2,  8. 

VARIANCE. 

1.  Upon  the  trial  of  an  action  upon  a  contract  for  the  payment  of 
money  the  defence  to  which  is  usury,  testimony  tending  to  show 
usury,  but  at  a  different  rate  from  that  alleged  in  the  answer,  ought 
not  to  be  excluded  for  variance.     Deuel  a.  Spence,  Ante,  237. 

2.  The  provisions  of  the  Code  respecting  variance  between  pleadings 
and  proofs  are  applicable  to  the  defence  of  usury ;  and  unless  the 
proof  of  usury  differs  from  the  answer  in  its  entire  scope  and  mean- 
ing, the  variance  will  be  deemed  immaterial,  if  the  plaintiff  gives  no 
proof  that  he  was  misled  to  his  prejudice.  Deuel  a.  Spence,  Ante,  237 ; 
Catlin  a.  Gunter,  1  Kern.,  368 ;  S.  C.,  10  How.  Pr.  JR.,  315. 

3.  Averment,  that  property  belonged  to  plaintiff.     Proof,  it  was  con- 
signed to  plaintiff  as  a  factor,  he  being  chargeable  with  its  value 
whether  sold,  lost,  or  destroyed.     Held,  no  material  variance.     Gor- 
um  a.  Carey,  Ante,  285. 

4.  In  a  declaration  on  a  contract  dated  6th  September,  1839,  which,  by 
its  terms,  was  to  be  executed  in  one  year  from  its  date,  an  averment 
was  made  of  tender  at  the  expiration  of  one  year  from  that  date,  to 
wit.  on  the  7th  of  September,  1840 ;  Held,  that  the  count  was  good, 
and  the  videlicet  being  inconsistent,  might  be  rejected  as  surplusage. 
Lester  a.  Jewett,  1  Kern.,  453. 

5.  Under  an  averment  of  a  promise  "in  or  about  the  year  1845,"  proof 
of  one  in  1848  is  no  variance.    Beach  a.  Tooker,  10  Hvw.  Pr.  R.,  297.. 


578  ABBOTTS'  PRACTICE  DIGEST. 

Reports  and  Statutes. 

*  VERIFICATION. 

1.  A  defect  in  the  verification  of  a  complaint  rendering  the  verification 
a  nullity,  merely  relieves  the  defendant  from  the  necessity  of  answer- 
ing under  oath,  but  does  not  affect  the  validity  of  a  subsequent  judg- 
ment.    Quin  a.  Tilton,  2  Duer,  648. 

2.  The  statute  requiring  a  petition  to  be  verified,  was  held  sufficiently 
complied  with,  where,  instead  of  the  ordinary  jurat,  there  was  indorsed 
upon  the  petition  an  affidavit  setting  forth  in  detail  and  affirming  the 
facts  set  forth  in  the  petition,  although  it  did  not  in  terms  refer  to 
the  petition.     Van  Alstyne  a.  Erwine,  1  Kern.,  331. 

3.  Where  the  verification  of  a  pleading  is  not  made  by  a  party,  the 
agent  or  attorney  making  it,  so  far  as  he  speaks  of  his  own  knowl- 
edge, must  state  what  knowledge  he  has ;  and  when  he  speaks  of  his 
belief,  he  must  state  the  grounds  of  his  belief.     In  a  complaint  upon 
promissory  notes,  a  verification  in  the  ordinary  form,  but  by  an  attor- 
ney, with  the  additional  statement  that  the  notes  mentioned  in  the 
complaint  were  in  his  possession ; — Held,  insufficient.     Treadwell  a. 
Fassett,  10  How.  Pr.  R.,  184. 

AFFIDAVIT  ;  ATTACHMENT,  7  ;  ANSWER,  4,  5. 

WAIVER. 

1.  In  proceedings  for  the  claim  and  delivery  of  personal  property,  a 
general  appearance  by  defendants,  is  a  waiver  of  any  irregularity  in 
the  affidavits  on  which  the  requisition  is  founded.     Hyde  a.  Patter- 
son, Ante,  248. 

2.  Failure  to  raise  an  objection  not  always  a  waiver.     Gates  a.  Ward, 
17  Barb.,  424. 

COMPLAINT,  31 ;   JUSTICES'  COURTS,  tit.  Adjournment,  1 ;   tit.  Juris- 
diction, 4;  tit.  Summons;  tit.  Pleading,  7,  10 ;  PARTIES,  17. 

WITNESS. 

[CONTEMPT,  4;  EXAMINATION  OF  ASSIGNOR;  EXAMINATION  OF  PAR- 
TIES ;  JUSTICES'  COURTS,  tit.  Adjournment,  2  ;  TRIAL,  tit.  Examina- 
tion of  Witness,  and  tit.  New  Trial,  11.] 
I.  Competency. 

1.  Every  witness  not  appearing  to  be  interested  in  the  issue,  is  to  be 
deemed  disinterested  until  the  contrary  is  made  to  appear.     Van 
Alstyne  a.  Erwine,  1  Kern,  331. 

2.  When  an  action  may  be  said  to  be  prosecuted  or  defended  for  the 
immediate  benefit  of  a  person  offered  a*  a  witness,  so  as  to  render 
him  incompetent     Crary  a.  Marshall,  1  £L  D.  Smith's  C.  P.  R.,  530. 


NEW-YORK.  579 


January — July,  1855. 


3.  It  seems  that  a  person  incompetent  to  testify  for  a  party,  cannot  be 
rendered  competent  by  being  made  a  party  to  the  record.     So  that 
a  plaintiff  cannot  render  competent  a  witness  for  whose  immediate 
benefit  the  action  is  prosecuted,  by  joining  him  as  defendant.     Sy- 
monds  a.  Peck,  10  How.  Pr.  £.,  395. 

4.  As  to  the  degree  of  interest  which  disqualified  a  witness  prior  to  the 
Code.     Reynolds  a.  Mynard,  1  How.  App.  Gas.,  620. 

5.  An  insolvent  debtor  who  has  assigned  his  property  to  assignees  for 
the  payment  of  his  debts,  is  a  competent  witness  in  an  action  brought 
by  his  assignee  in  relation  to  his  estate.     Such  an  action  is  not  pro- 
secuted for  his  immediate  benefit  within  the  meaning  of  the  Code. 
Symonds  a.  Peck,  10  How.  Pr.  ft.,  395. 

6.  When  the  assignor  of  a  chose  in  action  is  a  competent  witness  for 
the  plaintiff,  the  husband  or  wife  of  such  assignor  is  equally  compe- 
tent.    Hastings  a.  McKinley,  1  E.  D.  Smith's  G.  P.  R.,  273. 

7.  Ten  days'  notice  of  the  examination  of  the  husband  or  wife  unneces- 
sary.    Farley  a.  Flanagan,  Ib.,  313. 

8.  A  next  friend  is  not  a  competent  witness  for  the  party  for  whom  he 
appears.     Hahn  a.  Van  Doren,  2b.,  411. 

9.  Where  in  an  action  for  enticing  away  the  plaintiff's  wife,  the  mar- 
riage of  the  plaintiff  with  his  alleged  wife  is  denied  by  the  defence 
and  the  plaintiff  has  given  sufficient  evidence  to  establish  it  prima 
jade,  the  defendant  cannot  examine  the  wife  to  disprove  the  mar- 
riage.   Scherpf  a.  Szadeczky,  Ante,  366. 

10.  Competency  of  plaintiff  as  a  witness  on  his  own  behalf  in  an  action  by 
a  guest  against  an  innkeeper,  to  recover  for  lost  baggage.    Taylor  a. 
Monnot,  Ante,  325. 

11.  An  action  brought  by  a  receiver  of  a  judgment  debtor  appointed 
by  the  court  upon  supplementary  proceedings  against  a  person  in- 
debted to  such  judgment  debtor,  is  prosecuted  for  the  immediate  ben- 
efit of  the  judgment  debtor ;  and  the  latter  is  not  a  competent  witness 
on  behalf  of  the  receiver.     Vanduzen  a.  Worrell,  18  Barb.,  409. 

12.  A  sole  cestui  que  trust  who  as  such  will  be  entitled  to  the  whole  or 
a  definite  portion  of  the  sum  for  the  recovery  of  which  an  action  is 
brought,  is  not  a  competent  witness  for  the  plaintiff  in  such  action.    St. 
John  a.  The  American  Mutual  Life  Insurance  Co.,  2  Duer,  419. 

13.  A  person  convicted  of  perjury  remains  incompetent  as  a  witness, 
notwithstanding  his    subsequent  pardon.      Houghtaling  a.  Kelder- 
house,  1  Parker's  Gr.  R.,  241. 

14.  Under  the  Code  a  defendant  cannot  be  examined  by  his  co-defend- 
ant, to  establish  usury  as  a  defence  to  their  joint  promissory  note. 
Ely  w.  Miller,  Ante,  241. 


580  ABBOTTS'  PRACTICE  DIGEST. 


Reports  and  Statutes. 


15.  Nor  to  prove  in  an  action  for  goods  sold,  that  the  goods  were  not 
purchased,  but  only  received  to .  be  disposed  of,  and  to  be  paid  for 
when  sold.     Frost  a,  Hanford,  1  E.  D.  Smith's  G,  P.  R.,  540. 

16.  In  an  action  for  tort,  the  testimony  of  one  defendant,  in  mitigation 
of  damages,  is  not  admissible  in  behalf  of  his  co-defendant.     Beal  a. 
Finch,  1  Kern.,  128. 

ATTACHMENT,  8 ;   EXAMINATION  OF  ASSIGNOR  ;   EXAMINATION  OF 

PARTIES  ;  TRIAL,  tit.  Examination  of  Witness,  1.. 

Contradiction  and  Impeachment. 

1.  A  witness  impeached  by  proof  that  before  the  trial  he  made  state- 
ments which  conflict  with  his  testimony,  cannot  be  restored  to  credit 
by  evidence  that  he  has  previously  made  statements  in  respect  to  the 
points  upon  which  he  was  contradicted  which  are  consistent  with  his 
testimony.     Smith  a.  Stickney,  17  Barb.,  489. 

2.  A  witness  cannot  be  contradicted,  by  showing  that  previous  to  the 
trial  he  has  expressed  an  opinion  inconsistent  with  the  facts  stated  in 
his  testimony.     His  prior  statements,  introduced  to  contradict  him, 
must  be  statements  of  facts.     Holmes  a.  Anderson,  18  Barb.,  420. 

3.  What  foundation  must  be  laid  for  contradicting  a  witness  by  proof 
of  his  previous  inconsistent  statements.     The  People  a.  Austin,  1 
Parker's  Cr.  R.,  154. 

4.  What  evidence  against  the  character  of  a  witness  will  authorize  the 
party  calling  him  to  give  evidence,  of  his  general  good  character,  in 
reply.     People  a.  Gay.,  Ib.,  308. 

5.  Held  at  Circuit,  that  inquiries  into  the  motives  which  influence  a 
witness  in  testifying,  are  not  collateral  but  relevant  to  the  main  issue ; 
and  that  a  party  examining  a  witness,  as  to  his  motives,  may  contra- 
dict his  answers.     The  People  a.  Austin,  lb.,  154. 

6.  Whether  the  credibility  of  a  party,  examined  as  a  witness  on  behalf 
of  the  adverse  party,  can  be  afterwards  impeached.     Holbrook  a. 
Mix,  1  E.  D.  Smith's  C.  P.  R.,  154. 

WRIT  OF   ERROR. 

Upon  a  writ  of  error,  brought  prior  to  the  Code, — Held,  that  the  Court 
ought  not  to  give  judgment  of  reversal,  if  there  was  no  error  in  law, 
although  the  defendants  in  error  had  not  pleaded  in  nullo  est  erratum. 
Hyman  a.  Cook,  1  How.  App.  Gases,  419. 

CRIMINAL  LAW,  tit.  Writ  of  Error. 


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